A new consumer class action against Apple was brought by Plaintiff Austin Belanger, a senior airman in the Unites States Air Force and a citizen of Florida. This consumer class action is brought forward by Belanger on behalf of himself and all others similarly situated Florida residents who owned an Apple iPhone 4 or iPhone 4S that was operating on iOS 6 or an earlier operating system, and therefore lost the ability to use Apple’s "FaceTime" video conferencing feature when Apple intentionally broke FaceTime for iOS 6 and earlier operating systems on April 16, 2014.

In the formal complaint Belanger notes that "There are two types of ways that participants in a FaceTime call can exchange audio/video media: (1) the so-called "peer-to-peer method," where a direct connection is formed between the caller and the callee; and (2) the so-called "relay method," where the caller and the callee connect to a relay server that relays the data on behalf of the devices.

During the period relevant to this action, the servers used by Apple for relaying FaceTime calls were owned by a company called Akamai Technologies, Inc. (“Akamai”). Unlike peer-to-peer FaceTime calls, Apple made significant payments to Akamai for "relay usage" (i.e., bandwidth) on Akamai’s servers.

Prior to November 7, 2012, approximately 90–95% of FaceTime calls were connected through the peer-to-peer method, and only 5–10% through the relay method. Thus, Apple’s relay usage—and the expense to Apple arising therefrom—were relatively low.

On November 7, 2012, however, a jury found that Apple’s peer-to-peer method of connecting FaceTime calls infringed on patents held by VirnetX, Inc. ("VirnetX"). The only way for Apple to avoid knowingly and intentionally continuing its infringement on VirnetX’s patents was to shift 100% of FaceTime call volume to the relay method.

Upon shifting 100% of FaceTime call volume to the relay method, Apple’s relay usage soared. As a result, Apple began to incur multi-million-dollar monthly charges for its use of Akamai’s servers. Therefore, as internal Apple emails reveal, Apple undertook a concerted effort to find a way to reduce its relay usage by reducing the volume of FaceTime calls connected through the relay method. Indeed, an internal Apple email chain circulated during this time period bore the subject "Ways to Reduce Relay Usage," and explored potential strategies for doing so.

On September 13, 2013, potential relief from Apple’s high relay usage fees arrived. On that day, Apple introduced iOS 7, a next generation operating system that could connect FaceTime calls through the peer-to-peer connection method in a way that had not yet been found to infringe on VirnetX’s patents. The introduction of iOS 7 therefore helped Apple reduce its relay usage and the resultant payments from Apple to Akamai.

More than seven months after the introduction of iOS 7, however, millions of Apple users’ devices still operated on iOS 6 or earlier operating systems and thus could only be connected via FaceTime through the relay method. Because of this, Apple was still amassing significant relay usage and, therefore, facing substantial payment obligations to Akamai.

Consequently, to further reduce its relay usage costs, Apple devised a scheme to force millions of its users—i.e., users running iOS version 6 and earlier—to stop using FaceTime on their devices. As Apple’s internal emails and sworn testimony at the VirnetX trial revealed, Apple formulated a plan by which its engineers caused a digital certificate necessary to the operation of FaceTime on iOS 6 or an earlier operating system to prematurely expire. Upon the expiration of that certificate, and as a direct result of Apple’s actions, the valuable FaceTime feature immediately and abruptly stopped working for millions of users running iOS 6 or an earlier operating system (the "FaceTime Break"). To regain FaceTime capability, those users had to either transition to iOS 7, or buy an entirely new Apple device with iOS 7 preinstalled.

Apple did this knowing that for millions of users, moving to iOS 7 was highly problematic because it was essentially incompatible with certain Apple devices. For iPhone 4 and iPhone 4S users, for example, the coerced move to iOS 7 subjected their devices to slowness, system crashes, erratic behavior and/or the elimination of their ability to use critical functions on their phone. As succinctly stated in one of the media reports that discussed these widespread functionality problems, "the older handsets buckle under the weight of the new software." Thus, for millions of Apple’s customers, a move to iOS 7 would significantly harm the functionality of their device.

In addition to recognizing these perils of moving certain Apple devices to iOS 7, Apple more generally recognized the gravity of its decision to implement the FaceTime Break. Indeed, in the days leading up to the FaceTime Break, then-Apple Manager of Operating System Security Jacques Vidrine ("Vidrine") sent an email to other Apple personnel in which he highlighted the significance of what the company planned to do, stating: "Let me just voice my concern here. Maybe someone can talk me off the ledge by convincing me this is not as big a deal as I think."

Unfortunately, Vidrine’s appeal fell on deaf ears. In a disturbing juxtaposition to Apple’s marketing campaigns that highlighted the life-changing importance of FaceTime to separated families, deployed soldiers, hearing-impaired individuals and countless others, Apple advanced its financial interests by intentionally breaking FaceTime for millions of its users. Indeed, Apple employees mocked the situation—and the millions of users unwittingly marching toward the FaceTime Break—with a cartoon that was circulated within Apple via email.

Apple selected April 16, 2014 as the day on which the FaceTime Break would strike its customers. At the appointed time on that day and without warning, millions of Apple users—every user who had not installed iOS 7—suddenly lost the ability to use FaceTime.

The public response to the unexpected and unexplained FaceTime Break was swift and substantial, including numerous media reports and vast customer outcry. Rather than revealing the truth about the cause and impetus of the FaceTime Break, Apple claimed that FaceTime had suffered a "bug," and that to regain the ability to use FaceTime, users needed to transition their device to iOS 7.

Internal Apple emails eliminate any doubt that Apple intentionally broke FaceTime, and did so in order to reduce relay usage and the high costs related thereto. For example, weeks or months after the FaceTime break, Apple engineering manager Patrick Gates (“Gates”) [no longer with Apple] sent the following email to various Apple personnel: “Hey, guys. I’m looking at the Akamai contract for next year. I understand we did something in April around iOS 6 to reduce relay utilization.” Apple engineer Gokul Thirumalai responded to Gates, stating the following: “It was a big user of relay bandwidth. We broke iOS 6, and the only way to get FaceTime working again is to upgrade to iOS 7.”

Following the FaceTime Break, millions of iPhone 4 and iPhone 4S users whose devices were operating on iOS 6 or an earlier operating system faced three options for continuing to use their device: (1) remain on a pre-iOS 7 operating system, but without the ability to use FaceTime; (2) transition to iOS 7, and accept the significant reduction in functionality that their iPhone would suffer as a result; or (3) purchase a new Apple device with the necessary processing power to run iOS 7 without significantly reducing the functionality of the device. To quote the colorful language used by an Apple employee in an internal Apple email sent within hours of the FaceTime Break, as a result of the break “our users on [iOS 6] and before are basically screwed."  

Plaintiff brings this action on behalf of himself and all other similarly situated consumers who, at the time of the April 16, 2014 FaceTime Break, owned an iPhone 4 or iPhone 4S that was running on iOS 6 or an earlier operating system, and who therefore lost the ability to use FaceTime on their devices. Plaintiff alleges trespass to chattels and violations of the Florida Deceptive and Unfair Trade Practices Act."

Please note that Patently Apple added simple yellow highlighting for emphasis along links to Linkedin regarding Apple employees for verification purposes not found in the original court document. .  

Two-Count Class Action

The class action lists two counts against Apple as follows:

Count 1: Trespass to Personal Property under Florida Law

Count 2: Violation of Florida’s Deceptive and Unfair Trade Practices Act

To learn more of the details of this case, review the full Class Action lawsuit filing presented below, courtesy of Patently Apple.

   Austin Belanger Files Class Action Against Apple by Jack Purcher on Scribd

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