Pro-Microsoft attorney involved in anti-Apple iPod nano lawsuit

“Don’t get me wrong: I’m not a blind Apple follower. I seem to get on their nerves often enough (but that’s another story); still, I’m wondering if the hubbub over the ‘easily scratched’ iPod nano screen is much ado about nothing—or at least about very little. It seems that lawyers are the biggest beneficiaries of the legal shenanigans,” Dennis Sellers writes for Macsimum News.

“As Macsimum News noted on Friday, consumers who claim that the iPod nano screen scratches too easily have filed a class-action lawsuit against Apple, saying they want their money back plus a share of the company’s profits on the music player’s sales. The complaint, filed in the U.S. District Court in the Northern District of California in San Jose on Wednesday, was filed on behalf of nano owner Jason Tomczak and others who have purchased the device. The lawsuit alleges Mr. Tomczak rubbed a paper towel on his nano’s face and ‘that alone left significant scratches.’ The plaintiffs are represented by law firms Hagens Berman Sobol Shapiro and David P. Meyer & Associates,” Sellers reports.

“Interestingly, Steve Berman, one of the managing partners of Hagens Berman Sobol Shapiro LLP, has done some intensive work for Microsoft. As noted here, ‘more recently, Microsoft recognized Mr. Berman’s experience and expertise when the company retained him to be part of the core national team representing the company in antitrust class actions arising from Judge Jackson’s Findings of Fact in the Department of Justice antitrust case against the company.’ I guess it makes sense that a pro-Microsoft attorney would be involved in an anti-Apple lawsuit,” Sellers writes.

Full article here.

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Conventional methods of competition have failed to dent Apple’s iPod juggernaut. Can’t compete, litigate? All iPods (including nanos) scratch the same, from the many units we’ve seen. iBooks and iMacs, too, by the way. Black plastic shows scratches more than white. The scratches, however, are the same in our experience. If you want your iPod to remain scratch-free, buy a case. Should Apple change the iPod housing to a pebbled plastic or some other surface that won’t scratch or show scratches? Should Apple use a glass crystal screen face (like a watch) that’s scratch-resistant? Would iPod’s cost to consumers increase if such changes were made; more than the cost of a protective case? Should Apple include a cheap protective sleeve for iPod nano units in the box, as they do with the new iPods? As Apple reaches a mass market, is a lack of common sense in the general population magnified? If Joe and Jane Six Pack all bought Power Macs, would they sue Apple because their coffee cups snapped off their CD/DVD trays? How many iMac G5s would be in the shop because envelopes were shoved in the CD/DVD slot? Do people today innately understand that glossy plastic can be scratched? Have Apple’s competitor’s ginned up the FUD level on the iPod nano because it’s their last resort? What kind of idiot gets an iPod nano, doesn’t protect it, scratches it all up, gets a new iPod nano from Apple for free, and then doesn’t protect it and scratches it all up again? Where’s the line between “scratches too easily” and “can get scratched,” exactly? Will that nonexistent line hold up in court? We have many questions, do you have the answers?

Related articles:
Will iPod nano scratches lawsuit hurt Apple? – October 24, 2005
Class-action lawsuit filed against Apple over iPod nano scratches – October 21, 2005
PC Mag’s Ulanoff on iPod nano scratches: ‘I could see a jealous competitor planting the story’ – October 06, 2005
Mossberg: Apple iPod nano scratches easily, get a case to protect it – October 06, 2005
Apple iPods have always been far too scratchable, protective cases required to keep iPods pristine – September 30, 2005
invisibleSHIELD offers rugged, clear protection for Apple iPod nano and other iPod models – September 30, 2005
Got some nano scratches? Restore your iPod nano to new condition with a $4 can of Brasso – September 29, 2005
The Motley Fool: Apple did the right thing in quickly addressing cracked iPod nano screens – September 28, 2005
iPod nano ‘screen issues’ really just FUD? – September 26, 2005
Apple responds to iPod nano screen issues – September 27, 2005


  1. Courts often utilize a test for what is “reasonable”. Would a reasonable person expect to scratch a device by using a paper towel or cottom cloth? I think not. Would a reasonable person expect to scratch a device placed in a pockey with car keys and spare change? You bet.

    Yeah, if a manufacutring defect or poor Quality Control made some nanos less scratch resistant to “reasonable” methods of cleaning then sure, Apple should replace them. If people think the nano should be indestructable, they should replace their brains.

    MDN word: young

  2. Isn’t it strange that Joe Six Pack, who has a ‘scratched’ nano, found one of the largest, most prestigious (expensive) law firms in the Silicon Valley to handle his case? How would he know to call this firm?

    This will blow over. In doing so, I hope the law firm accrues a great many large bills, and receives nothing from the suit.

    MDN Word = full, as in full of it.

  3. The Devil and his deamons want a litttle piece of heaven!

    roughly translated:

    The Gates of Hell and his lawyers go after Apple the only way they can – through the back door…

    MDN word: special. As in “Bill has ‘special’ needs”

  4. Good points from MDN (I did chuckle a bit about the coffee cup in the CD/DVD tray!). Anyone can sue anyone in this country, and unfortunately there are enough attorneys out there that are willing to “play the lottery” since they’re not held accountable for frivolous filing of lawsuits. The UK system of the loser paying for the court costs sounds intriguing and fair!

    MW = “along” Yeah, I go along with MDN on this one!

  5. I don’t think this is a good legal case but I think That apple could have used a denser plastic. My Sony phon that I have had over a year has less scratches than my Nano and I’ve kept it in an oakley glasses cass (the glasses were stolen). My phone is black too, and I’ve droped it, a lot. I think people are whining over nothing, they would have noticed the scratches early if they really cared.

  6. Well Jason Tomczak must not be the smartest in the iPod nano using bunch. Let me tell you; paper towels can double as fine grit sandpaper since they have very fine wood fibers, which act as a sanding surface. When it comes to polishing surfaces that have acrylic and other such materials, ONLY USE 100% COTTON!!!

  7. Why not to for an issue that actually has some merit? Like filling a class action lawsuit against Microsoft for knowingly selling defective, unstable and insecure software … the damage they have caused must be enormous!

  8. This sort of sounds like the Tom Delay case in Texas where you have a known liberal partisian prosecuter procecuting the case and a known liberal partisian judge presiding over the case who has donated to democratic causes.

    – Mark

  9. “me”

    A paper towel is very abrasive to plastic, etc. Anyone who’s worn glasses over the last 20 years (since the sidespread use of plastic lenses) or anyone that has an LCD screen on their computer should know that — I think THAT’S reasonable, i.e., to EXPECT to get scratches from the paper towel!

  10. I think the real issue for the courts in this is whether or not the mp3 player in question is no longer able to perform the function for which it was purchased. In the case of the iPod nano, there is some loss of use if the screen is scratched beyond the ability to read or view what is diplayed. However, I think it will be extremely difficult to convince a judge that the individuals were so harmed by some scratching that the device was totally unusable and therefore they are entitled to both a refund and profits.

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