Litigation

Class Action against Apple and AT&T to proceed

jerrykaltenbach

I have an iPhone.  I love it.  I have AT&T service on my iPhone because I have to.  I don’t love it.

I honestly don’t know if I would love the iPhone more on Verizon, T-Mobile, Sprint, or any other carrier.  A device so powerful, so popular, and so demanding of bandwidth has the capacity to cripple any carrier.  That’s why I hope all the carriers will have the iPhone someday.  I may not even switch from, AT&T.  At least, not right away.  I will wait to see how network traffic across carriers is affected.  Fewer iPhones on multiple networks will should reduce traffic and dropped calls. Also, competition amongst the communication giants should reduce the “sticker shock” when I get the monthly bill.

These topics and more, including anti-trust and claims of secret deals between Apple and AT&T, are the subject of many lawsuits filed since 2007 and now consolidated in the Northern District of California.  The AP reported this morning:

SAN JOSE, Calif. – A federal judge says a monopoly abuse lawsuit against Apple Inc. and AT&T Inc.’s mobile phone unit can move forward as a class action.

The lawsuit consolidates several filed by iPhone buyers starting in late 2007, a few months after the first generation of Apple’s smart phone went on sale.

An amended complaint filed in June 2008 takes issue with Apple’s practice of “locking” iPhones so they can only be used on AT&T’s network, and its absolute control over what applications iPhone owners can and cannot install on the gadgets.

The lawsuit also says Apple secretly made AT&T its exclusive iPhone partner in the U.S. for five years. Consumers agreed to two-year contracts with the Dallas-based wireless carrier when they purchased their phones, but were in effect locked into a five-year relationship with AT&T, the lawsuit argued.

The actions hurt competition and drove up prices for consumers, the lawsuit claims.

Apple and AT&T have not commented on the terms of their deal. In its response to the complaint, Cupertino,California-based Apple said it did not hurt competition.

In court documents filed July 8, Judge James Ware of the U.S. District Court for the Northern District of California said parts of the lawsuit that deal with violations to antitrust law can continue as a class action. The class includes anyone who bought an iPhone with a two-year AT&T agreement since the device first went on sale in June 2007.

Apple has sold more than 50 million iPhones in the last three years. The company does not specify how many have gone to U.S. customers.

Ware dismissed other claims against Apple, among them allegations that the company broke laws when an update to the iPhone’s operating software caused some phones to stop working and deleted programs that users had purchased.

The lawsuit seeks an injunction to keep Apple from selling locked iPhones in the U.S. and from determining what iPhone programs people can install. It also seeks damages to cover legal fees and other costs.

We will continue to follow this story on the blog.  Would you like links to filed court documents from this case?  Let us know in the comments and we will provide.

5 Things and More to Know Before you Trademark

jerrykaltenbach

Do you have that great once-in-a-lifetime idea? Have you created a great logo or a new word to represent the brand behind your idea? If so, you may consider obtaining a trademark at your state level or at the federal level. The process is not easy and an article by freelance writer Shira Levine I saw today offers some advice:

It seems like almost anything can be trademarked these days. The name of a product, a catch phrase, and your own name, if it’s beguiling, for that matter. All is for sale and fair game for the bidding.

Businesses have been known do whatever it takes to protect their brand, including shut down another trademark that threatens to be the slightest bit akin to their own.

Historically individuals and companies fight to trademark even the silliest of names. The trademark for the almighty iPad, a name that most definitely does not conjure up images of the latest slick gadget from Apple, initially had issues with Fujitsu. Back in 2003, Fujitsu beat Steve Jobs to the iPad trademark, purchasing the name for use as a mobile phone.

This wasn’t the company’s first trademark dispute, either; the name Apple itself caused a multi-year battle with The Beatles’ record company.

Another extreme example is HBO’s Sex and the City franchise, which has had its fair share of trademark issues. In one situation, a clever New York entrepreneur tried to start a health and fitness business called “Health and the City”, but HBO told the owner to back off their trademark. “Health and the City”, however, won that war.

1. Make sure your trademark isn’t already taken. Use LegalZoom or the US Patent and Trademark Office website to verify if anyone has it. Continue reading →

You Must Buy My House, But Don’t Have to Paint My Fence: Specific Performance

jerrykaltenbach 1 Comment

Contracts, contracts, contracts.  We all have a basic understanding of what a contract is: it’s an agreement to do something in exchange for something else.  The fundamental elements of a contract are:

Hey, Huck, how about you paint this fence?

Offer: I’ll pay you $50.00 to paint my fence.

Acceptance: Ok, it’s a deal.

Consideration: $50.00 paid to the painter.

Performance: The fence gets painted.

Now what happens if you pay the $50.00 and the painter runs off with it?  You can sue the painter for breaching the contract.  Have a look at my post on small claims court practice for information on how to do this.

Let’s say you sue and you win.  What is your remedy?  Can you get the $50.00 back?  Absolutely.  Can you force the painter to paint the fence (a remedy known as specific performance)?  No.  Ohio law is pretty clear that specific performance for a contract for personal services is not an available remedy.  The reasoning behind this is the “mischief” that could result by forcing a party to perform a service after breaching a contract. Continue reading →

Small Claims Court. So, do I need a lawyer to sue this guy?

jerrykaltenbach

The muscles cringe, the strain sets in, and the resentment, scorn, and frustration boil over whenever someone hears this answer from a lawyer to what seems like a simple question:  “Maybe.”

You can go it alone, or bring a lawyer.

But, believe me, the lawyer is not trying to get you to pull your hair out.  The quick answer is “yes,” anyone can represent themselves in Small Claims Court.  However, going it alone might be the worst decision depending on the circumstances you are facing.   For instance, who is going to be on the other side of the battle?  If you sue a person or company that shows up with a lawyer, then you’re likely outmatched.  It may have nothing to do with the merits of your case.  The truth will prevail, but you have to play by a set of rules in order to properly present that proof to the judge.  This is where the professional guidance of an attorney can make all the difference.  The biggest part is just being ready.

Small Claims cases involve matters where $3,000 or less is in dispute and are filed in the Small Claims Division of the Franklin County Municipal Court if you live in my neck of the woods.  If you want to pick a bigger fight, you can claim up to $15,000 in the General Division of the Municipal Court.  Anything higher than that, and it’s Common Pleas Court time, my friend.  We’ll look to a practical example to illustrate the small claims process: Continue reading →