A Lawsuit Within A Lawsuit

Posted by: Arik Hesseldahl on May 24, 2006

When the word came that class-action lawsuits had begin regarding scratches and other damage to Apple iPod nano, I was awfully hard on Jason Tomczak. And I wasn’t the only one. In my Oct. 2005 column I railed against class action lawsuits like the one in which Tomczak was named as the lead plantiff. My criticism was aimed less at Tomczak personally and more at a legal system that allows law firms to shake down big companies like Apple for ridiculous complaints. In the end, I argued, the settlements that companies like Apple reach in these cases amount what for a $14 billion company is chump change, while the lawyers involved collect seven-figure sums. Plantiffs meanwhile get coupons or discounts that often require months of waiting and filling out annoying paperwork with lots of legalese in fine print.

I still feel this way about class-action lawsuits of this type and think the lawyers who file them should find something better to do rather that clog up the already overburdened court system.

In court filings, Tomczak supposedly claimed that, Apple knew about defects to the nano’s display and yet didn’t recall the units affected, and opted instead to pass the “expense, hassle, and frustration” of getting a replacement on to consumers.” He further — suppossedly that is — went on to say in the filing that he returned his scratched nano to the store and paid a $25 restocking fee to get a refund, and that this small bit of financial injustice prompted him to call a lawyer and file a lawsuit seeking restitution, disgorgement of profits, compensatory and consequential damages, punitive damages, attorneys’ fees, costs of the suit, pre- and post-judgment interest, and “further relief as this Court may deem necessary and proper.”

I qualify those statements here because Tomczak has thrown some doubt on the matter of his intention to have ever filed a lawsuit against Apple in the first place.

In what’s entitled “An Open Letter To The Mac Community” Tomczak claims he never authorized a lawsuit to be filed on his behalf, and that he’s now suing the lawyers who did file it using his name as that of the lead plantiff. Here’s the key quote:

“At no time did David P. Meyer & Associates or Hagens Berman Sobol Shapiro ever receive any attorney-client agreement form from me. On their own time and based on their own schedules and plans, they prepared the paperwork and filed the iPod Nano Class Action suit in California using my name as Lead Plaintiff, however this was done without my knowledge or consent.”

Additionaly, two days after the lawsuit was filed, Tomczak claims he was contacted urgently by the other law firm in the class-action case, David P. Meyer and Associates seeking his signature on an attorney-client agreement.

At the time the lawsuit first came to light, I spoke with Steve Berman, of the Seattle office of Hagens-Berman. In my column I paraphrased Berman as saying he had never received so large a response in such a short time, and then quoted him directly as saying “We have people calling in from every state and from 10 different countries. We can’t keep up with all the e-mail that’s pouring in on this case.”

Moments ago I placed a call to Berman to ask about Tomczak’s claims. I’ve also put in a call to Tomczak’s new law firm, as I’d like to hear from Tomczak himself. Let’s all watch how this matter unfolds closely, shall we?

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