Frivolous lawsuit against Apple’s iPod falls on deaf ears

Imagine that the auto maker was held legally liable every time a driver decided to drive unsafely or recklessly with the potential of causing injury – not that any injury actually occurred – but hypothetically it might. In a nutshell, that was the case against Apple over alleged iPod hearing loss.

The two plaintiffs (both lawyers) who brought the case never suffered any harm themselves, and there was no proof that anyone who used an iPod suffered hearing loss as a result of using an iPod. They simply claimed that there was a potential risk of hearing loss to other unidentified iPod users. Never mind that iPod urges users to avoid hearing damage by setting the volume at safe levels.

The class of victims potentially included the tens of millions who purchased iPods since 2001. Not surprisingly, they wanted monetary “damages”…both for themselves, and of course a percentage of any damages paid to class members. They also wanted all class members to be tested for hearing loss. I’m sure some well-paid expert witness would have been able to testify on how any hearing loss was due to iPod use alone.

The case was first filed in 2006. The plaintiffs included a carpetbagger from Louisiana who initially got the idea and filed the case in that state and a Berkley, California lawyer who teamed up with the first and re-filed in a Northern California court.

Although the case was initially dismissed, the plaintiffs continued to appeal under California’s Unfair Competition Law. Just last week, a three judge panel of the Ninth Circuit Court of Appeals in San Francisco affirmed a 2008 district court ruling that the plaintiffs failed to show that use of the iPod poses an unreasonable risk of noise-induced hearing loss.


Thanks to Proposition 64, passed by the voters of California in 2004, the plaintiffs needed to establish that they suffered an injury themselves and/or lost money or property as a result of unfair or unlawful conduct. The courts have concluded that neither occurred.

Remarkably, the plaintiffs are still considering an appeal to the full Ninth Circuit Court even though the panel called the claims “obvious” and said that a reasonable person could easily avoid hearing loss by turning the volume down.

The real question is whether the two plaintiffs will be required to pay Apple’s court costs for bringing a clearly frivolous lawsuit and wasting the courts time and resources.

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