By : Equipe Phonegate • 27 Sep 2022
judgment rendered on September 22, 2022, the seven plaintiffs, Tracey Ariel, Claire O’Brien, Erika Patton, Zoe Patton, Alex Tasciyan, Mathew Nucciarone and Vito Decicco, have been given a win by Judge Christian Immer. They will therefore be allowed to launch a class action against the manufacturers of Apple and Samsung smartphones, in the context of the Phonegate scandal.
The action had been initiated in September 2019 by Attorney Charles O Brien, following the revelations in August 2019 of American journalist (and 2008 Pulitzer Prize winner) Sam Roe in the Chicago Tribune.
Just recently (end of August 2022), in the U.S. Phonegate case, a ruling did not hold the giant Apple accountable for the overexposure of users of its iPhones.
Phonegate could cost Apple and Samsung dearly
The Canadian decision also authorizes a claim for damages against Apple Canada, Apple Inc., Samsung Electronics Canada and Samsung Electronics Co. Ltd. As a result, the seven plaintiffs will have the status of representatives of the class defined by the following wording:
« Any physical person residing or domiciled in Quebec, who has, since September 11, 2016, purchased or leased and used an Apple or Samsung cellphone. »
It is therefore nearly 8.5 million people who are concerned, knowing that according to a recent study, 81% of Quebec adults have a smartphone – iPhones and Android smartphones share the Quebec market. Now, millions of consumers are potentially and directly concerned by this judgment and by obtaining damages.
Questions that need answering
Judge Immer identified several primary issues of fact and law that will need to be addressed collectively:
1. Do the defendants’ phones cause the SAR level to exceed 1.6W/kg on 1 gram of tissue and if yes, at what separation distance ?
2. Does this pose a risk or danger to the user ?
3. Can RF exposure, regardless of separation distance, cause adverse health effects thereby constituting a risk or danger ?
4. Should Apple and Samsung have provided instructions to protect users against such risks or danger, thereby triggering their liability under s. 53 CPA ?
5. Is this an important fact which Apple and Samsung failed to mention to users in violation of s. 228 CPA ?
6. Should Apple or Samsung pay punitive damages ?
In reading the recitals, we are really pleased to see that the smartphone test documents that we obliged ISED to turn over to us were incorporated into the analysis of this case.
The Canadian authorities must react!