Plaintiffs Adam Backhaut and Bouakhay Joy Backhaut of Macomb County, Michigan and Kenneth Morris of Riverside County, California have launched a Class Action against Apple in San Jose. The case is about Apple's iMessage not delivering text messages to Android smartphones. This latest Class Action lawsuit was filed yesterday – just one day after Californian Adrienne Moore filed her Class Action against Apple over the very same issue.
This Class Action Complaint Covers Four Areas of Law
1. STORED COMMUNICATIONS ACT
2. ELECTRONIC COMMUNICATIONS PRIVACY ACT
3. UNFAIR COMPETITION LAW
4. CONSUMER LEGAL REMEDIES ACT
The Testimony of Adam and Joy Backhaut
Plaintiff Adam Backhaut purchased an iPhone 5 in December 2012 at a Best Buy store in Michigan. At the time of purchase, a Best Buy employee set up his iPhone 5, including iMessage. Mr. Backhaut used the iPhone 5 for approximately one year.
Plaintiff Joy Backhaut purchased an iPhone 5 at the same time and place as her husband and a Best Buy employee also set up her iPhone 5, including iMessage.
In December 2013, Plaintiff Adam Backhaut purchased an "HTC One" for approximately $250.00, which runs an Android operating system, and switched the number previously associated with his iPhone 5 to his new phone.
Apple's authorization to access or intercept Mr. Backhaut's text messages ended when he switched to an HTC One.
Following Mr. Backhaut's switch to an Android based phone, Mrs. Backhaut continued to text her husband as she had previously used the Messages app on her iPhone. When Mrs. Backhaut texted her husband, her iPhone indicated that the texts she was sending were "delivered." In fact, Mr. Backhaut never received these messages. The messages continued to be intercepted by Apple's iMessage system, despite the fact that the Plaintiff was no longer an iPhone user.
Over the course of a few weeks following his purchase of an Android phone, Apple's iMessage system intercepted texts intended for Mr. Backhaut from not only his wife but also from others.
After Mr. Backhaut realized that he was not receiving his text messages because they were being intercepted by Apple, Mr. Backhaut attempted to remove his phone number from the iMessage system but was unsuccessful. Apple continued to intercept text messages intended for him from his wife, business associates, and anyone else who was an iPhone/iMessage User.
The Testimony of Kenneth Morris
Plaintiff Kenneth Morris was an iPhone user from November 2007 through December 2012.
Mr. Morris purchased his last iPhone, an iPhone 5, in October 2012 at an Apple Store in Palm Springs, California. Mr. Morris used iMessage on that iPhone 5. Mr. Morris purchased an Android-based phone in December 2012.
Apple's authorization to access or intercept Mr. Morris' text messages ended when he switched to an Android-based phone.
Mr. Morris attempted to remove his phone number from the iMessage system but continued to have his text messages intercepted by Apple through iMessage.
Mr. Morris even went so far as to ask his contacts to manually change the settings in their iPhones to send him texts as SMS messages rather than through iMessage by deleting and then reentering his contact information. While this "fix" initially worked, after Apple released the iOS update version 7.1.1, the problem started anew. Even those contacts who had manually changed their settings to send texts via SMS/MMS continued to have problems with texting the Plaintiff.
The Problem with iMessage
Apple is interfering with the text messages of mobile users who switch from being Apple customers to using a competitor's phone or mobile device (e.g. an Android, Windows Phone, or BlackBerry device).
Apple's iMessage system for transmitting text messages bypasses a user's SMS/MMS system, and, therefore, does not route through the user's text messaging plan. Instead, the text is sent via Apple's iMessage system. Once a user's phone number is registered to use iMessage, all text messages sent to it by other iMessage users will route through iMessage.
Former iPhone/iMessage Users who switch to using another type of mobile device continue to be registered with Apple as iPhone/iMessage Users. Thus, if a current iPhone/iMessage User sends a text message to one of his or her contacts that is a former iPhone/iMessage User, that text message is intercepted by Apple as an "iMessage" and is never delivered to its intended recipient (the former iPhone/iMessage user).
Due to the fact that the message is intercepted by Apple and treated as an iMessage on the sender's phone, the message will display the "delivered" tag despite the fact the text never reaches its intended recipient. Accordingly, the sender believes the message was delivered to its intended recipient despite the fact that it was not and the former iPhone/iMessage user has no way of knowing that Apple intercepted the message.
Apple's authorization to access the text messages of its iPhone/iMessage User customers ends when they cease to be iPhone users. Apple fails to remove former iPhone/iMessage Users' information from its iMessage system, which results in Apple's continued improper accessing and intercepting of text messages sent to former iPhone/iMessage Users.
Apple's Knowledge of the Problem
In another segment of the Class Action, they stated that "Apple has been aware of this issue as early as January 5, 2012. Nonetheless, Apple has failed to correct the problem," and cite the following articles:
On January 5, 2012, CNET News published an article entitled "iMessage bug swats iPhone owners who switch to Android."
On July 15, 2013, Fast Company published an article entitled "I Switched From iPhone to Android and Now I Can't Get Texts."
On September 16, 2013, Mashable published an article entitled "Will Apple ever fix the iMessage Text-Killing Problem?"
On May 13, 2014, Gizmodo published an article "When Apple Damns Your Texts to iMessage Purgatory."
On May 14, 2014, Business Insider published an article entitled "An Apple Employee Admits That iPhones Often Won't deliver Texts if You Switched to Android."
The complaint adds that "Some reports have even indicated that Apple's technical support may charge class members $19.00 to 'fix' the issue."
If Apple is found guilty, the Class Action will cost Apple a minimum of five million dollars.
This Class Action was filed in California Northern District Court, San Jose Office. The Presiding Judge in this case is Lucy H. Koh and the Referring Judge is Paul Singh Grewal. The law firm behind this Class Action is Audet & Partners, LLP of San Francisco.
Side Note #1: Here's Apple's Solution: iOS: Deactivating iMessage
Side Note #2: Do you believe that it's purely coincidental that two Class Action lawsuits concerning iMessage were filed within a 24 hour period or that a particular Android OEM is coordinating these actions behind the scenes? Send in your comments below.
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