Miscellaneous

by Mike Masnick




Nano Scratch Class Action Plaintiff Says He Had Nothing To Do With The Lawsuit

from the whooops dept

Last October, after the news picked up on some reports that the brand new iPod Nano devices had screens that were easily scratched, a class action lawsuit was filed, naming Jason Tomczak as the lead plaintiff. There was just one problem: Tomczak says he never wanted anything to do with the case (found via Digg). Tomczak is now working to clear his name from the suit, but is discovering that it's not at all easy. His side of the story is that he spoke to the lawyers to provide them some background information, but specifically said he did not want to be involved in the case and did not want his name used publicly. He claims one of the law firms involved admitted it made a mistake, but now the two sides appear to be suing each other over the matter. Obviously, we're only seeing one side of the situation at this point, but if it's true, it shows just how questionable some of these class action lawsuits can be. We've already seen how ridiculous some of these class action lawsuits can get these days, but potentially naming a lead plaintiff by accident (and not correcting the problem once it's been brought out) seems particularly bad.

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  • identicon
    Josh, 24 May 2006 @ 1:21am

    HA! first post... but anyway, really, it's pathetic, it's seems the american way is to sue for anything and everything... and here i thought McDonalds coffee should be served cold...what ever...

    reply to this | link to this | view in chronology ]

    • identicon
      james, 24 May 2006 @ 3:10pm

      Re:

      Don't mention the McDonalds coffee case unless you know what you are talking about, it only proves that you are an idiot. McDonalds got its ass handed to it on that case for a reason.

      reply to this | link to this | view in chronology ]

  • identicon
    lol, 24 May 2006 @ 1:43am

    stupid lawsuit

    yeah, I guess that would be the same as shooting your friend in the chest who was wearing a superman t-shirt, and finding out "oh I guess not." once he bleeds to death and then suing the t-shirt company.

    reply to this | link to this | view in chronology ]

  • identicon
    Adam, 24 May 2006 @ 7:13am

    The American Way.

    The American way is not to sue everyone, but to blame everyone else when you get yourself into trouble (as the lawyers are doing to each other) but in the class action pertaining to the Nano, isn't it a legitimate case; isn't the Nano just too easy to scratch and Apple should have realized this in their testing and improved the product before selling it?

    reply to this | link to this | view in chronology ]

  • identicon
    ChronoFish, 24 May 2006 @ 7:32am

    Isn't there a way to make sure that the plantiffs get more money than the lawyers? You don't have to limit the size of the awards - you just have to limit the percentage that a layer can receive per plaintiff.

    If it's legit, the plaintiff is more likely to pay personally up-front. And if it's not, there is less incentive for the lawyer to rape the system.


    -CF

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 May 2006 @ 7:37am

    Naaa, just stand up in court as the plantiff and tell the judge you want to move to have the case dismissed - unless it's criminal, it's pretty much the plantiff's call, right?

    reply to this | link to this | view in chronology ]

  • identicon
    rOb, 24 May 2006 @ 8:22am

    Worthy Lawsuit

    As an early iPod Nano owner, I was *pissed* that these things scratch if you breathe on them heavily. There's no way in hell Apple should be charging what they're charging for these devices if they scratch immediately upon pulling them out of the box. That's freakin' ridiculous. I'm all for this lawsuit. Those of you complaining about this obviously don't own Nanos.

    reply to this | link to this | view in chronology ]

  • identicon
    anonymous coward, 24 May 2006 @ 9:06am

    it really is a reflection of the type of sheeple that buy iPods.

    it's scratched! call an attorney! class action!

    reply to this | link to this | view in chronology ]

  • identicon
    BIGJSTL, 24 May 2006 @ 9:14am

    Sue Happy Americans Drive the Price of Service UP

    All I have to say is that we need to quit being a sue happy country. There has to some accountability with the law firms and they way they conduct business and advertising their services. Look at the whole Tobacco Situation.

    Let's see here, I'm sticking a stick of tobacco on fire in my mouth. Will it cause me harm, duh!

    I think there are some really stupid people in this country when it comes to using products.

    If you buy an IPOD you might want to by a protective cover so the screen doesn't get scratched. HELLO!!!!!

    People need to work hard and quit being couch potatoes. No wonder our jobs are going over to INIDA

    J

    reply to this | link to this | view in chronology ]

    • identicon
      Frank, 24 May 2006 @ 2:51pm

      Re: Sue Happy Americans Drive the Price of Service

      I like your line of thinking....and your snappy smug attitude. Truly Refreshing.... but could you please point out where on the map is INIDA? I googled it and Google laughed at me. I'm so embarrassed.... Gee should i sue Google?

      reply to this | link to this | view in chronology ]

    • identicon
      1 Who Cares, 25 May 2006 @ 2:17am

      Re: Sue Happy Americans Drive the Price of Service

      > ..we need to..

      Who ever asks these people to think for the rest of us? America aint perfect, but the 'we need to' crowd got chucked out over 200 years ago and sent packing back to the 'united' kindgom.

      I say, 'No thanks' to 'we need to' type of thinking!

      reply to this | link to this | view in chronology ]

  • identicon
    Matthew, 24 May 2006 @ 9:27am

    Dont sue, just Dont Buy

    I think this is all a load of crap. So what the Nano scratches easy... Dont buy it! I read reviews and research something before I go and waste money on it. If people stop buying Nanos, Apple will fix it. Simple as that.

    reply to this | link to this | view in chronology ]

  • identicon
    Frank, 24 May 2006 @ 2:42pm

    Apple Law Suit

    Granted their products are hip and cool and brilliantly marketed, when you invest money in an ipod, you're gonna get a refurb product when the battery goes (who wants other people's scratches?) so basically, you are renting an mp3 player for a limited time then it's just a way cool paperweight with a scratched screen. How hip is that????
    Do your research before you buy and get something with user replacable batteries. A bit less cool but much smarter.

    reply to this | link to this | view in chronology ]

  • identicon
    Winston, 24 May 2006 @ 2:57pm

    Lawers Chasing Bucks

    I have two points:

    1) I agree with Post 10. But for those of you who bought before the word was out, all you had to do was take it back. No store would refuse to take back a product that was scratched or defective in any way ... and no store did.

    A reporter in my city bought 10 Nanos from 10 different stores including BestBuy, the Apple Store, and some mom-and-pop shops; all 10 were accepted without incident.

    If I'd bought a new cell phone and the screen was scratched, I'd take it back ... not mount a federal case against the manufacturer. And if it was a consistent quality problem, I'd just stay away from it .... choose another phone. The problem with Apple products is that its products are sooooo desireable, we can't seem to stay away and there's no comparable product.

    So we get pissed and sue.

    2) Don't miss the point of this Class Action Suit though; this had nothing to do with the lowly music lover ... this was two massive legal firms looking to get some press, build a reputation, and make some serious money off of Apple. If this dude is an unsuspecting Plaintiff, then there was no real Plaintiff. The suit was dreamed up by a lawyer.

    reply to this | link to this | view in chronology ]

  • identicon
    1 Who Cares, 25 May 2006 @ 2:13am

    ignore 'First Post Guys'

    I do. When I see those words, I skip the rest of the message, knowing it only contains deep thoughts, far too profound for this inquiring mind.

    ..unless he also posts for us a swimsuit babe pic. ;)

    reply to this | link to this | view in chronology ]

  • identicon
    t, 25 May 2006 @ 11:00pm

    nice trick

    1) it was a very good idea to make a player that scratches easily - now people buy tons of protective covers. remember that they do not get all the money from selling the players themselves, but also from selling accesories (including things that should be build in, but are not - because it's better to sel the radio or something like that later).

    2)"I like your line of thinking....and your snappy smug attitude. Truly Refreshing.... but could you please point out where on the map is INIDA? I googled it and Google laughed at me. I'm so embarrassed.... Gee should i sue Google?"

    for all those who have simmilar problems i suggest buying a map instead of another little nice accesory for ipod. pathetic

    reply to this | link to this | view in chronology ]

  • identicon
    Andrew, 6 Jun 2006 @ 11:20am

    Other side of the story

    Attorneys Representing Consumer Law Firm
    Address Former iPod Prospective
    Class Representative’s Charges



    SEATTLE - (May 26, 2006) – Mike McCarthy of Nemecek & Cole, counsel for Hagens Berman Sobol Shapiro, LLP, one of the firms representing plaintiffs in proposed class-action suits against Apple over the excessive scratching of iPod Nanos – today responded to statements made by Jason Tomczak regarding the Apple iPod Nano litigation.

    In a Web site posting earlier this week, Tomczak – who has also gone by the names Jason Ellenburg and Jason Swartzer prior to 2004 – claimed that his name was listed as the named plaintiff in the suit without his permission.

    “We categorically deny that the firm purposely involved Mr. Tomczak in the Apple iPod Nano litigation without his consent,” said McCarthy. “Mr. Tomczak spoke directly and exclusively with the law firm of David P. Meyer & Associates, after he posted harsh criticisms about the scratching problems with his Nano on the Internet.”

    According to McCarthy, after his client was notified that Mr. Tomczak did not wish to be a party to the suit after all, the firm took immediate steps to replace him as the lead plaintiff with one of the hundreds of consumers that contacted them, wanting to join the suit.

    Tomczak was listed on the suit for less than a week before an amended complaint was filed, he added.

    McCarthy noted that he does not know why Mr. Tomczak is making these allegations, but he finds many of Mr. Tomczak’s actions curious, including:

    • On April 20, 2006, Mr. Tomczak claimed under oath that he did not know the attorneys representing consumers were planning a lawsuit when he agreed to provide his assistance, stating he thought they were authoring a report of some sort. Yet, on October 7, 2005 Mr. Tomczak sent an e-mail to an Apple Computer attorney, warning the company that the law firm was trying to “…build a class action suit against Apple…”

    • Within 15 minutes of being told his name was included on the suit, Mr. Tomczak was in contact with an out-of-state attorney friend to begin a process that culminated in his pre-lawsuit demand for $750,000 to agree not to sue Hagens Berman and others. When the demand was rejected, Mr. Tomczak filed suit.

    • Mr. Tomczak states in his open letter posted throughout the Internet that the attorneys brought on to defend against Mr. Tomczak’s lawsuit delved into his personal life, objecting that the questions have nothing to do with the lawsuit. The deposition transcript shows, though, that these questions focused on why Mr. Tomczak changed his name twice, and he “willing[ly]” answered over his own attorney’s objection.

    • Mr. Tomczak claims that the consumer firms are threatening “that [he] be held financially responsible for their attorney’s fees and costs.” That is inaccurate. Mr. Tomczak filed suit against the consumer firms and the issue of whether a prevailing party can recover attorney’s fees and costs is simply a matter of well-established legal rules and procedures. Mr. Tomczak’s legal counsel should have informed him of this.

    “We have no idea why Mr. Tomczak has acted as he has, but we believe the evidence will show that Mr. Tomczak was fully aware of the consumer suit against Apple and played a willing role in its development,” McCarthy said. “It seems as if he is attempting to reinvent reality, but we certainly hope that the issue will be resolved without having a negative effect on the hundreds of consumers that wish to be part of the suit.”


    Media Contact

    Mark Firmani
    Firmani + Associates
    (206) 443-9357
    mark@firmani.com

    reply to this | link to this | view in chronology ]


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