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11 February 2020

United States: Apple Bid To End IPhone Safety Suit Prompts Discovery Order

This is a new article from Law360.com on the Cohen et al. v. Apple Inc. et al., case number 3:19-cv-05322, in the U.S. District Court for the Northern District of California.

Apple Bid To End IPhone Safety Suit Prompts Discovery Order
law360.com, 10 February 2020

Law360 (February 10, 2020, 9:44 PM EST) -- A California federal judge refused Apple's motion to dismiss a proposed class action claiming it fraudulently marketed iPhones as safe and exposed consumers to excessive radiofrequency radiation, instead converting the motion to a summary judgment bid and sending the case to discovery.

U.S. District Judge William Alsup said Monday that Apple Inc.’s argument — that the suit should be dismissed because the company followed the Federal Communications Commission’s guidelines for testing such radiation — requires outside evidence and can’t be determined at the dismissal stage.

“The vast array of material presented outside of the pleadings, including supposed factual statements and findings of the Commission, triggers treatment of this motion as one for summary judgment,” he said. “This motion cannot and should not be decided on this record. Further discovery into the issues presented is necessary.”

The plaintiffs claim Apple fraudulently misrepresents and conceals that consumers who use its iPhones as marketed will be exposed to radiofrequency radiation levels exceeding the federal Specific Absorption Rate limit of 1.6 watts per kilogram and the risks of that exposure.

Plaintiffs say recent independent tests done by FCC-accredited labs have shown that iPhones exceeded federal limits for radiofrequency radiation emissions when used in close proximity to the body and that because the FCC doesn't regulate Apple's disclosures to consumers, plaintiffs' claims are not preempted.

In Monday’s order, Judge Alsup said that that much of the dispute centers on the test-separation distance used. At a hearing last week, Apple said that its testing could be done at any distance between 0 millimeters and 25 millimeters away from the body.

At the hearing, the judge questioned whether Apple was properly characterizing the FCC’s testing standard.

“I can’t believe the FCC would be that dumb. That is a terrible rule,” he said. “I can’t believe it can be manipulated like that.”

On Monday, Judge Alsup noted that a Law360 article published Thursday mischaracterized his comment, saying the story incorrectly framed his words as a barb at the FCC rather than at Apple. He also tracked down the FCC’s guidance and noted that Apple was omitting key parts of the standard.
“Apple’s reading with such an omission was the dumb part, not the commission’s guidance,” he said Monday.

Law360 issued a correction to its earlier reporting in response to the judge's comments.
Noting that more discovery is needed — including into how the FCC’s guidance should be implemented — he denied Apples motion to dismiss.

“The court is inclined to hold that if the Apple products ultimately satisfy the commission’s standard, then all claims must be dismissed on preemption grounds,” he said. “On the other hand, if the products in question do not meet the commission standards, then the court is inclined to let all of the claims go forward.”

The proposed class claims that based on Apple's misrepresentations, millions of people purchase their smartphones, carry them around all day and use them up against their skin, without being made aware of the health risks. Plaintiffs initially named Samsung as a defendant but voluntarily dismissed that company from their suit in January.

The proposed class is represented by Elizabeth A. Fegan of Fegan Scott LLC and Jennie Lee Anderson of Andrus Anderson LLP.

Apple is represented by Jonathan S. Tam, Amisha Rajni Patel, Mark S. Cheffo and Christina Guerola Sarchio of Dechert LLP.

The case is Cohen et al. v. Apple Inc. et al., case number 3:19-cv-05322, in the U.S. District Court for the Northern District of California.

--Additional reporting by Hannah Albarazi. Editing by Amy Rowe.


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