Lawyers: Big Response to Nano Class-Action Suit

Lawyers involved in building a class-action lawsuit against Apple Inc. regarding its iPod Nano device said Tuesday that large numbers of people are attempting to participate in the case.

While refusing to provide specific figures on the volume of consumers looking to join the recently filed class-action suit, David P. Meyer (search), co-lead attorney for the proposed litigation, said that he and other lawyers organizing the case have been contacted by people in every U.S. state and several other countries who are looking to get their money back from Apple.

The suit, filed last week in San Jose, Calif., claims that the iPod Nano, introduced in mid-September, is defectively designed as its display screen (search) can be easily scratched under normal use.

Meyer, who operates his own practice in Columbus, Ohio, and other lawyers involved in the suit, specifically those from the Seattle-based law firm of Hagens Berman Sobol Shapiro, maintain that Apple chose to disregard the design problem with the Nano before its release and has not taken sufficient steps to address the issue since that time.

"From the volume of complaints that we've reviewed, the Nano is subject to excessive scratching in normal use in a certain amount of time," said Meyer. "This is much more than a cosmetic issue, as people spent between $200 and $250 on a product that promised a color display, and what we're seeing is that soon after this product is purchased the scratches appear on the screen to the point where it affects the overall usability."

Apple representatives didn't immediately return calls seeking comment on the lawsuit, which will require that a judge grants it class-action status in order to move forward.

The legal claim alleges that in designing the Nano, Apple constructed the device's housing such that its color screen and controls reside directly under a "less durable film of resin," allowing the scratching to occur.

The filing contends that earlier iPods used a tougher form of plastic to protect their screens from marring and that Apple "ignored obvious defects in the design" in its push to get the product to market.

In addition, the suit maintains that after consumers began posting negative comments about the scratching issue on Apple's Web site, the company moved to delete some of the feedback in an effort to quiet the controversy. The legal claim seeks a full refund for the device's buying price, as well as the $25 needed to ship a broken iPod back to Apple for repair, among other damages.

Apple conceded publicly in late September that some of the Nano screens were having cracking issues, but said that the problem affected less than 1 percent of the devices it had sold. The company has yet to detail overall sales results for the Nano.

The Cupertino, Calif.-based hardware maker has since recommended that Nano buyers consider additional protection for their devices in the form of clear plastic cases designed to shield the screens, and some buyers have begun following the advice, posting pictures of their entombed iPods on the company's Web site. However, Meyer said that such advice trivializes the negative experience of Nano buyers and doesn't protect the company from litigation.

"The initial response that we see is Apple telling people to go spend more money to buy a cover, to spend another $30 to protect them from more scratches, and that's not acceptable," said Meyer. "Everybody knows that plastic scratches, but at the same time you can't put out a product that can't be used as it was intended and expect consumers to pay that kind of money and be satisfied."

As late as last week, customers were still posting their complaints over the scratching issue, and Apple's lack of response, to the company's site. A user identified as Andrew Warnes wrote he has had little luck in finding someone at the company willing to listen to his problems and indicated that the Nano fell well short of expected durability levels.

"The Nano has been in my pocket inside a soft case since I bought the dreaded thing 6 weeks ago and it already has two large scratches on the display glass," wrote Warnes. "Now consider my [Motorola] V3 Razor phone (search) sits in the opposite pocket and I have had that over a year and not a sign of scratching to the color screen. I think this is poor of Apple."

The only major complaint that Apple has received about the iPod, pre-Nano, has been in regard to the battery life of some of its earliest examples of the devices.

In June, the company settled several class-action suits related to that issue, offering an extended service warranty and $50 store credits to people who had experienced the problem, which affected iPods manufactured between 2001 and May 2004.

Apple reported that it sold over 11.5 million iPods over its last two fiscal quarters, the latest of which ended Sept. 24. The company said that it shipped over 1 million Nanos over the first three weeks the device was available and indicated at that time that it had more orders for the machines than it could fulfill.