Lawsuits Mount As Apple Manages Fallout From Revelation Of Slowed iPhones

Dec 31, 2017

Apple had a message for its customers this past week: "We apologize."

Customers have been angry ever since the company confirmed its software updates slow down older iPhones with aging batteries. Apple says it did that to prevent those iPhones from shutting down unexpectedly.

While this apology might help on the public relations front, the legal issues are another matter.

Apple is facing a number of lawsuits over the issue from iPhone owners in states including California, New York and Illinois. There's also a lawsuit from customers in Israel and one from a French consumer rights group.

Broadly, the lawsuits cover contract law claims — saying that Apple harmed something the consumer owned and wasn't transparent about it — as well as consumer protection violations.

"You changed my phone in a harmful way [and] didn't tell me you were doing that," Rory Van Loo tells NPR's Lauren Frayer. Van Loo is a law professor at Boston University who focuses on technology and regulation.

The claims allege that the deception may have caused consumers to buy a new phone when instead they could have just bought a new battery. For the plaintiffs to succeed in the fraud claims, they will need to prove that Apple intended to promote new phone sales by slowing down old phone sales.

"For all claims [plaintiffs] will need to prove some kind of harm," Van Loo says. "They're going to need to show that Apple intentionally withheld information about slowing down the phones" and that customers would have made a different decision.

Though these lawsuits face a bit of an uphill battle, Van Loo says Apple should be nervous.

"For one, Apple has lost a number of cases across the country on some similar arguments in recent years," he says.

In a lawsuit first filed in 2015, iPhone 4s users claimed they were forced to download an update that made their phones buggy and unusable. Apple tried to get that case thrown out, but last month a judge ruled against the company.

Apple's argument, and one that they Van Loo says they may use again, is that users are told in the fine print of software updates that "things may go wrong."

"Apple is not going to be protected by what they put in the fine print," he says. "You have to be very specific about what you say in the fine print, and as far as I'm aware, it didn't anywhere say, 'We may slow down your phones with our updates.' "

After the battery issue came to light, Apple apologized to customers and said it would offer discounts to replace old batteries. The company also said new features are rolling out "that give users more visibility into the health of their iPhone's battery, so they can see for themselves if its condition is affecting performance."

While good news for future customers and in the court of public opinion, Van Loo says it doesn't free them from the potential legal liability.

Apple's apology "is not going to protect them from what they did last month and last year," he says.

Despite the criticism and lawsuits, Apple's explanation and response to the battery concerns does not include any indication that older phones using old batteries will stop slowing down.

Copyright 2018 NPR. To see more, visit http://www.npr.org/.

LAUREN FRAYER, HOST:

Apple had a message for its customers this past week - we apologize. People have been angry ever since the company confirmed its software update slowed down older iPhone's with aging batteries. Apple says it did that to prevent those iPhones from shutting down unexpectedly. This apology might help on the public relations front, but what about the legal one? Apple's still facing lawsuits from iPhone owners in California, in New York and Illinois. To help sort through this, we're joined by Rory Van Loo. He's an associate professor of law at Boston University with a focus on tech and regulation. Welcome.

RORY VAN LOO: Thank you.

FRAYER: So lawsuits have been filed in all of these different states. Very broadly, what claims are these lawsuits making against Apple?

VAN LOO: There's contract law claims, which essentially amount to, look, we had an agreement that you, Apple, would do certain things, like take good care of my phone and not slow it down, be transparent in what you're telling me you're doing, and you breached that. There's a second category of claims that amount to essentially you harmed something I own. Whether or not we had an agreement, you went and you slowed down something that I bought from you in the past, and you shouldn't have done that. And then there's a third category of claims that are consumer protection violations. So you did something unfair or deceptive. You changed my phone in a harmful way, didn't tell me you were doing that, and that caused me to go and spend a lot of money on a new phone when, if you'd just been transparent with me about what you had been doing, I could have gone and bought a cheaper battery.

FRAYER: I gather it varies by state, but what do these plaintiffs need to prove for some of these claims?

VAN LOO: The plaintiffs are going to need to prove for their fraud claims in some jurisdictions that Apple intended to promote new phone sales by slowing down old phones.

FRAYER: That this was some kind of plot, a sales tactic.

VAN LOO: Yes. For all claims, it's going to need to prove some kind of harm. They're going to need to show that Apple intentionally withheld information about slowing down the phone. They're going to need to show that consumers would have made a different decision not to buy a new phone and instead to purchase a lower priced battery in order to establish harm.

FRAYER: It's still very early in the legal process, but what are the chances that these lawsuits will win against the tech giant Apple?

VAN LOO: All of the lawsuits face an uphill battle. That being said, if I were Apple, I would be nervous right now. For one, Apple has lost a number of cases across the country on some similar arguments in recent years. Just last month, Apple suffered a setback on an older lawsuit, and in that older case, iPhone 4 users had argued that an Apple software update made their phones buggy and unusable even though Apple had said that the software upgrade would enhance performance. And Apple tried to get that case thrown out before it ever got off the ground and, in its initial response, used one of the arguments that it's likely to make in the current cases, which is, look, we told you in the fine print for the software update that things might go wrong, so we never made any promises.

FRAYER: So is the moral of the story here we better read that fine print? I mean, every time you have an update and you click OK, OK, I mean, have we agreed to things that we didn't realize we were agreeing to?

VAN LOO: Yes and no. I mean, Apple is not going to be protected completely by what it puts in the fine print. And the reason is that you have to be very specific about what you say in the fine print. And as far as I'm aware, it didn't anywhere say we may slow down your phones with our updates.

FRAYER: But they did say that now in the apology, that they didn't intentionally shorten the life of a product.

VAN LOO: Apple's apology this past week is not going to protect them from what they did last month and last year. And so that's the problem that they face right now. I think the apology is going to make some consumers happier, and it's going to help their image in the court of public opinion, if you will. And that - that's not irrelevant, actually, to lawsuits because judges and juries are human, and so to the extent that Apple is going to appear to be exercising good faith here because of their apology, that's good for Apple, but it doesn't free them of the potential legal liability.

FRAYER: Rory Van Loo is an associate professor of law at Boston University. Thank you.

VAN LOO: Thank you. Transcript provided by NPR, Copyright NPR.