On January 9, 2018, Cohen Milstein and co-counsel, filed a putative nationwide class action against Apple Inc., on behalf of owners of Apple’s iPhone SE, 6, 6 Plus, 6s, 6s Plus, 7, and 7 Plus, for unfair and deceptive business practices in violation of California Business & Professions Code § 17200 and making material misrepresentations and failing to disclose material information related to Apple’s iOS software operating system updates for Apple iPhones.

In June 2018 John Ferguson, et al. v. Apple, Inc. was consolidated by the Judicial Panel on Multidistrict Litigation as a multidistrict litigation and remanded to The Honorable Edward J. Davila for U.S. District Court, Northern District of California, San Jose Division to be litigated.

Cohen Milstein was appointed to the Plaintiffs’ Steering Committee in this multi-district litigation and is one of two firms overseeing the Expert Committee.

Case Background

Plaintiffs allege that starting in October 2016, iPhone owners, including owners of the newly launched iPhone 7, who had downloaded the latest iOS updates were reporting that their iPhones were shutting down suddenly and without warning.

The complaint further alleges that rather than revert to a version of the iOS that was compatible with the phones’ hardware, or provide free batteries to meet the demands created by iOS updates, on January 25, 2017 and then again on December 2, 2017, Apple released iOS 10.2.1 and iOS 11.2, respectively, which Apple said was compatible with iPhones under dispute. Through these iOS updates, Apple introduced “throttling” as a way avoid shutdowns in iPhone SE, 6, 6 Plus, 6s, 6s Plus, 7, and 7 Plus, and which, in effect, would cap the iPhone CPU’s maximum frequency, thereby slowing down processing on the phones, which entailed, among other things, longer launch times for applications, slowdown in the overall performance, impaired battery life, and reduced functionality of the phones – by as much as 60%. Furthermore, Apple did not disclose the introduction of throttling in the iOS to consumers, instead misrepresenting the iOS updates as improvements, thereby forcing frustrated consumers to buy new, upgraded phones or purchase new batteries for their phones, costing consumers $30 - $80 per battery.

Plaintiffs seek, among other things, appropriate injunctive relief, including an order requiring Apple to modify the iOS to prevent it from intentionally degrading the performance and battery life of the Subject iPhones; prohibiting Apple from throttling future iPhone models, particularly without the express consent of affected consumers; and requiring Apple to tell iPhone users that the iOS and iOS updates on the phones throttled the phones’ performance.

Case name: In Re: Apple Inc. Device Performance Litigation, Case No. 5:18-md-02827-EJD, U.S. District Court, Northern District of California, San Jose Division.