Apple Apple lawyers have informed the court hearing a $350 million class-action lawsuit over iPod music software that plaintiff lawyers might have a serious problem: Their lead clients don’t own the products they’re suing over. The San Jose Mercury-News reports that after named plaintiff Marianna Rosen testified in the case on Wednesday, Apple lawyers did the logical thing and checked to see if she owned an iPod produced during the class period between September 2006 and March 2009.  Turns out she doesn’t, Apple says. The serial number on her iPod shows it was purchased in July 2009, those lawyers said in a letter to the court, contrary to her testimony that she purchased it in 2008. Another named plaintiff, Melanie Wilson, also bought the wrong iPods or had the wrong software installed, those lawyers say.  This is hardly surprising, since most consumer class actions are lawyer-driven cases where the named plaintiff is often a friend, employee or fellow lawyer who serves as a convenient prop for the litigation. Under our Constitution, after all, there must be a “case or controversy” before lawyers can sue, and that means they need a client, even if they have to go out and find one.  It was a potentially devastating blow to the case assembled by Robbins Geller attorney Bonnie Sweeney, however. The lawsuit has proceeded with twists and turns since 2005, according to this CNET account, as plaintiff lawyers have adjusted their theories on how Apple was able to charge monopoly prices for digital music on iTunes by preventing the software from playing MP3 files from rival music distributors. After a judge rejected Version 1.0 of the lawsuit, CNET says, lawyers changed their tune to accuse Apple of making software updates that kept rival music stores off the iTunes platform.  This is typical in class-action land. As with any repeated game, class-action lawyers are a well-defined group of players who must establish a reputation for fighting hard in every case and racking up as much expenses on the defense side as they can, in order to induce companies to come to the settlement table. That’s where they make their money, and the convenient fiction that they are suing on behalf of consumers collapses as they get down to the real negotiations, which are over the fee they will be paid without any objections from their supposed opponents across the table.  But for the whole process to work, they still need clients. And those clients must have a case. Defense lawyers have slowly but steadily woken up to the fact that those clients often come with baggage — Bill Lerach, the founder of the predecessor to Robbins Geller, went to jail for paying his clients to appear in securities class actions — and they are digging into their backgrounds to find out if they can even serve as plaintiffs. This must strike some plaintiff lawyers as strange, since everybody knows the “client” is just a vehicle for assembling a case that often is already loaded in their computer, ready to be filed. But it’s the law, and U.S. District Judge Yvonne Gonzalez Rogers may just decide that this long-running case has met an insuperable barrier.  She didn’t quite go that far in court on Thursday, saying only: “I am concerned that I don’t have a plaintiff. That’s a problem.” It’s a big problem, in fact the central problem with most class actions.  This isn’t the first time Robbins Geller has found itself in a fix over its supposed clients. In fact, I have written several “Whoops!” headlines over the years, including this classic from 2010. For an example involving another highly professional law firm, see this one from earlier this year.
A long-running lawsuit over Apple iTunes comes up against a potentially insuperable barrier: The "clients" don't own the products they are suing over.