<b><i>Online Extra:</b></i> Apple Beats Back Privacy Suit Over iMessage Glitch

A federal judge in San Jose has refused to certify a class of former Apple customers who claim the company illegally intercepted their text messages as a result of a glitch in its iMessage system.

In'a 28-page order, U.S. District Judge Lucy Koh of the Northern District of California ruled last month that it would be “administratively infeasible” to determine who qualified as a class member and concluded that individual questions would eclipse common ones, making class certification inappropriate.

The ruling frees Apple Inc. from the threat of potentially pricey damages under the Wiretap Act, which carries statutory damages of up to $10,000 per violation. Koh also found that the plaintiffs lacked standing to pursue an injunction barring Apple from making further interceptions.

Lawyers at Audet & Partners sued Apple'in May 2014 on behalf of iPhone users who later switched to non-Apple devices. The plaintiffs claimed that their phone numbers remained stuck in the iMessage system, which prevented them from receiving some messages on their new devices.

Koh allowed plaintiffs' Wiretap Act claims to survive a motion to dismiss from Apple'last November, although she tossed some related claims under the Stored Communication Act and California state law.

Koh denied class certification on the remaining Wiretap Act claims, finding that individual issues predominated. Under the Wiretap Act, Apple can argue that it had implied consent from either the sender or receiver of each individual text message. Koh wrote that deciding the consent issue would require a complicated factual inquiry, especially since the amount of information available in news reports and online posts about the glitch could have put users on notice about Apple's alleged interceptions.

Koh also declined to certify a class for injunctive relief finding that the two lead plaintiffs lacked standing since neither faces a threat of future injury. According to Koh's order, one of the plaintiffs has opted out of using the iMessage system on his iPhone 6 and the other said during a deposition that he's now receiving all his messages and the issue is resolved.

Joshua Ezrin of Audet & Partners, who represents the plaintiffs, did not respond to messages on Monday. Morrison & Foerster's David Walsh, who represents Apple, also could not be reached.

Koh denied class certification earlier this month in a related case that alleged Apple's iMessage system interfered with contracts that ex-iPhoners entered with their wireless providers. Koh rejected the class definition since it included people who might not have experienced service disruptions and those whose new plans don't provide for text messaging. Plaintiffs have filed a motion for reconsideration.

Ross Todd writes for The Recorder, an ALM sibling of e-Commerce Law & Strategy. He can be reached at'[email protected].

'

A federal judge in San Jose has refused to certify a class of former Apple customers who claim the company illegally intercepted their text messages as a result of a glitch in its iMessage system.

In'a 28-page order, U.S. District Judge Lucy Koh of the Northern District of California ruled last month that it would be “administratively infeasible” to determine who qualified as a class member and concluded that individual questions would eclipse common ones, making class certification inappropriate.

The ruling frees Apple Inc. from the threat of potentially pricey damages under the Wiretap Act, which carries statutory damages of up to $10,000 per violation. Koh also found that the plaintiffs lacked standing to pursue an injunction barring Apple from making further interceptions.

Lawyers at Audet & Partners sued Apple'in May 2014 on behalf of iPhone users who later switched to non-Apple devices. The plaintiffs claimed that their phone numbers remained stuck in the iMessage system, which prevented them from receiving some messages on their new devices.

Koh allowed plaintiffs' Wiretap Act claims to survive a motion to dismiss from Apple'last November, although she tossed some related claims under the Stored Communication Act and California state law.

Koh denied class certification on the remaining Wiretap Act claims, finding that individual issues predominated. Under the Wiretap Act, Apple can argue that it had implied consent from either the sender or receiver of each individual text message. Koh wrote that deciding the consent issue would require a complicated factual inquiry, especially since the amount of information available in news reports and online posts about the glitch could have put users on notice about Apple's alleged interceptions.

Koh also declined to certify a class for injunctive relief finding that the two lead plaintiffs lacked standing since neither faces a threat of future injury. According to Koh's order, one of the plaintiffs has opted out of using the iMessage system on his iPhone 6 and the other said during a deposition that he's now receiving all his messages and the issue is resolved.

Joshua Ezrin of Audet & Partners, who represents the plaintiffs, did not respond to messages on Monday. Morrison & Foerster's David Walsh, who represents Apple, also could not be reached.

Koh denied class certification earlier this month in a related case that alleged Apple's iMessage system interfered with contracts that ex-iPhoners entered with their wireless providers. Koh rejected the class definition since it included people who might not have experienced service disruptions and those whose new plans don't provide for text messaging. Plaintiffs have filed a motion for reconsideration.

Ross Todd writes for The Recorder, an ALM sibling of e-Commerce Law & Strategy. He can be reached at'[email protected].

'