Judge Lucy Koh pressures Apple by consolidating lawsuits over undelivered texts to Android downgraders

“Yesterday, Judge Lucy Koh made a ruling that affects two separate lawsuits filed against Apple involving the company’s alleged failure to deliver text messages to the intended recipient after users switched from iPhones with iMessage to Android,” Jordan Crook reports for TechCrunch.

“The first case was filed in May by plaintiffs Adam Backhaut, Joy Backhaut, and Kenneth Morris, arguing that Apple was violating the Stored Communications Act and the Electronic Communications Privacy Act (commonly referred to as the Wiretap Act) by intercepting messages from their intended recipient,” Crook reports. “The second case was filed a day later by plaintiff Adrienne Moore, who made a number of claims against Apple, many of which were denied by the judge. However, Moore’s case was passed earlier this week on one claim having to do with Apple’s alleged interference with her current wireless contract with her Android provider.”

“Judge Koh (who has her own history with Apple) consolidated the Backhaut case and the Moore case into a single lawsuit yesterday, requesting that a complete, amended complaint be filed with the courts no later than December 4,” Crook reports. “All three parties, counsel for Backhaut, Moore, and Apple, asked not to be consolidated into a single case, as the theories waged by each of the plaintiffs is very different.”

Read more in the full article here.

MacDailyNews Take: Judge Lucy Koh knows best… about what, we have no idea!

Once again, for the obviously overwhelmed and pitifully pea-brained Lucy Koh and the rest of the morbidly stupid, Apple’s iOS Messages webpage very clearly states:

iMessage lets you send messages back and forth with anyone on iPad, iPhone, iPod touch, or a Mac running Mountain Lion or later.

Nowhere does Apple state that their iMessages instant messenger service will work with random inferior iPhone knockoffs.

Related articles:
Judge: Apple must face U.S. lawsuit over vanishing iPhone text messages – November 11, 2014
Apple introduces online tool for deregistering iMessage – November 10, 2014
Apple sued for 2nd time over iMessage failure to deliver texts to Android phones – May 17, 2014
Apple sued over vanishing texts to Android phones – May 17, 2014


      1. What countries is that pray tell. She is one of a small group of Federal judges in Silicon Valley area.most of her cases are related to tech companies. You think there is an army of justices sitting around that are available. Courts are very short handed.you know.

    1. Hey guys that’s a real problem.

      When some of your contacts switch to a not-iPhone phone, my own iPhone try to send an iMessage and don’t switch to old fashioned sms why iMessage obvisouly failed to be delivered.

      I love Apple, and had owned dozens of products for almost 30 years. But in this case, Apple failed.

      How difficult is it to to have the target iPhone to confirm iMessage has been received and, if the sender does not receive the confirmation, switch to sms ?

  1. Pretty sure they don’t have a leg to stand on. Apple provides customers with a way to remove their number from iMessage (it also removes itself after 45 days and always has). Until recently, you could also call or chat with Apple and they would manually remove it (if you didn’t still have the phone). Now their is an online tool that you can use to remove it (thought I’m sure you could still contact Apple and they would do it). That blows the “Apple is holding onto my number” bullshit out of the water.

    As to the claim that Apple is violating their agreement with the carrier by redirecting text messages, they’re doing no such thing. Apple is directing iMessages, not texts (SMS, MMS). Your iPhone owning friend sent you an iMessage not a text message, you just weren’t equipped to receive it.

    1. Apple’s tool to remove your number from iMessage is very recent (this week). This lawsuit is about things that happened before the tool was released.

      I briefly switched from my iPhone 4S to an HTC phone (and then returned it 13 days later and went back to my iPhone). During that 13 day period messaging was hell. iPhone owners would do their very best to send me an SMS message, but their iPhone wouldn’t let it go over SMS, it forced it over iMessage, and because I had not de-activated iMessage prior to selling my 4S none of my iPhone owner friends could send me any kind of messages. I spent over 2 hours in an Apple Store where I live to try to get them to resolve the problem. Eventually they brought out an unlocked iPhone for which my sim card fit..where I had to switch back over to iPhone…activate the phone on my account, then de-activate iMessage…then wait…then erase the phone then move the sim card back to the android device.

      It was the biggest phone pain in the ass I had ever had and probably my only qualm with Apple. In the past 2 years since that happened Apple has made efforts to make it easier, but nothing comes close to the tool they released this week.

      Besides, the “45 days autoremove” may unregister my phone after 45 days…which is 44 days longer than it should take, but it still doesn’t send any messages or convert any messages to SMS and send them that were sent to you in that 45 days. This is probably the ONE thing I wished Apple would have handled better from the get go.

      1. Yeah, a pain-in-the-ass maybe, but not worthy of a lawsuit implying some Apple conspiracy to intercept messages. Jeez, if I could sue all the inept tech companies out there with technology that never works right, I’d be rich — wait, this is the America, I can sue! But… I won’t, because it’s a bunch of b.s.

            1. And if you send an SMS, and the recipient has no signal, and the message doesn’t get delivered, you don’t have legal grounds to sue mobile carrier (or phone maker) either.

              BUT, when both phones work properly, and both phones have signal, and you send a text message, and it doesn’t get delivered, not because of any fault of carrier, but because of a poorly implemented feature in one of those phones, then you may have grounds for a legal remedy.

          1. If the message is not delivered because the Android owner no longer has an iOS device (it’s still delivered if they have an iPad with that Apple ID for instance), the iPhone owner will not have a delivered indicator below the message they sent, they may also have a red exclamation next to the message they tried to send.

    2. To anyone outside of our Apple fanboy circle, what you are saying is simply incomprehensible, because they simply don’t know that there is a difference between SMS/MMS and iMessage. We are talking about hundreds of millions of iOS users, who have been sending iMessages since the protocol was introduced, believing that they were SMS-texting their friends.

      This is a very serious problem because Apple made it so completely transparent to users that they had no way of understanding the fundamental difference between SMS/MMS and iMessage.

      None of the “solutions” that are being mentioned here are reasonable. All of them require users to know about, and understand the difference between SMS/MMS and iMessage, which they don’t.

      We may not like this law suit (and judge Lucy Koh), but this one will likely proceed on its merits.

      1. The lawsuit stipulates interception, wiretapping, etc.

        This is completely false. As the phone sending the message did not send an SMS to be routed or interrupted. It sent an iMessage. A sent message is not owned by the plaintiff until it’s received. It’s not US mail. It’s owned by the phone that sent it. It’s like a letter going to the wrong address.

        There are plenty of SMS messages not received out there, yet no lawsuits. This is a money grab, plain and simple.

        You can’t claim your phone call was intercepted, when it originated on Skype, yet your PC was turned off or you uninstalled the app.

        Getting rid of an iPhone is the same as uninstalling iMessages without telling the service you no longer plan on using the service. Those messages will be lost.

        1. There is a strong legal case to be made with this problem, but if the law suit claims what you say it does, it may eventually lose, as it is looking at it the wrong way.

        2. Basically the idea being presented is Apple’s iMessage servers are holding onto (intercepting?) the message when it isn’t delivered because it thinks there is an iOS device that will eventually connect and receive the message. Not sure if wiretapping is valid though since that usually also means the message content is being processed at some point by other than the recipient.

  2. Re the MDN take: how is the person sending a message supposed to know what phone the recipient owns? The problem only arose when an Apple owner sent a text to somebody at a phone number that used to be attached to an iPhone but now isn’t. The terms of service hardly give notice that this situation is going to result in the message sitting on Apple servers forever without notice to either party.

    1. Actually it did notify one party. The iPhone user would have a red exclamation next to the message indicating it was not delivered, unless that person receiving the message still had a device using iMessage (in that case, they did get the message and no harm was done).

  3. “Nowhere does Apple state that their iMessages instant messenger service will work with random inferior iPhone knockoffs.”

    This isn’t about being able to use iMessage on other platforms, it’s about your phone number being tied iMessage and people moving to another platform who no longer received messages because their phone number was still tied to iMessage. I don’t think it’s a coincidence that Apple set up this website to de-register your phone number from iMessage and then a few days later this lawsuit comes down. Apple should’ve had the process that up a long time ago.

    1. Apple did have a process in place, but users have to be smart enough to understand that they need to remove their phone number from iMessage BEFORE switching to an Android phone. And that explains the problem, the requirement for a certain level of intelligence, that is.

      1. I know several people for whom I’m absolutely certain that they are quite more intelligent than you (or me, for that matter). And they don’t have a clue about the iMessage; they don’t know it exists, that it is different form SMS/MMS, that there is indeed a difference, and that there may be consequences if any of their friends moved to Android seeking bigger phone screen. They don’t care to know these details; their field of expertise is NOT IT; they are world’s leading experts in some other fields, and they use their iPhone to sent text messages (among other things), which they assume will be delivered to the intended recipients.

        Having a “process in place” that requires you to un-register some obscure service on your iPhone just before you decide to turn it off for the last time before moving to another phone is exactly the same as having to open the hood of your old car, unscrew the air filter cap and flip some valve in there before you get rid of that car, so that your new car’s airconditioner can work properly. At least this is exactly how the process seems to every normal person (outside of the expert Apple fanboy circles).

        1. I guess when you sell a car you don’t clean out the glovebox and the trunk first. That you’re not concerned about the snow chains, flashlight, and other items stored there that you might need for your next car.

          How much effort is Apple expected to put into making sure that a competitor’s hardware works with their systems? It seems to me that you change platforms at your own risk, and that you should use a bit of diligence in making sure that you have visited all the items that will need to be changed in order to do that migration successfully. If there were NO way to avoid this problem that would be one thing, but to say that it reached a certain level of difficulty, and therefor, you shouldn’t be expected to be responsible for performing those steps is disingenuous.

          1. You seem to be mentioning physical things for changing your car equivalent to removing cases, screen protectors and port covers on the iPhone. The iMessage setting is probably more equivalent to removing bluetooth settings, custom GPS map locations, radio station settings and the like. Unless you are aware of them you probably won’t think about changing/removing them. Not that any of that is mentioned in any manual for iPhone or cars..

        2. Psychology Today defines intelligence as: “general intelligence, a construct that includes problem solving abilities, spatial manipulation and language acquisition.”

          Those who cannot perceive and solve problems of a wide range of subjects may have limited intelligence but for many, they lack an understanding of the technological world we are now thrust into. This intellectual laziness is forgivable because our society does not value well rounded ‘out of the box’ thinking. We specialize and do not make ‘lifelong learning’ a goal.

          Yes, many people are ignorant about their level of ignorance.

          1. The specific people I was thinking of when I posted above are absolutely more than capable of solving problems of a wide range of subjects, and are perfectly capable of out-of-the-box thinking.

            However, a phone is a utilitarian device. They don’t expect (as they shouldn’t) such device to be a riddle, or a challenge. They don’t expect to have to engage in critical thinking when all they want to do is take a SIM card out of one phone and move it to the other.

            Couple that with the fact that since the beginnings of mass use of mobile phones (say, about 15 years ago), all the way through the first six versions of the iOS, this was exactly most common procedure when moving from one phone to the next — take the SIM card out of the old one, put it in the new one. Anyone who has had mobile phones for the last 15 years (and in the process changed an average of seven or eight devices) has never needed to think about some obscure setting in the app they use for their SMS/MMS. This was the case with the first six generations of the iPhone. And when the seventh appeared, it didn’t look any different; however there was a change under the hood, which introduced the technology which allowed user to send what appears to be an ordinary SMS through phone’s data network, bypassing carriers SMS/MMS protocol (and associated per-use charges), if the recipient had an iPhone. And this was done in a completely transparent way, so that no user ever even knew what was happening. About at least a dozen iPhone owners have asked me with curiosity, why some SMS messages are green and others are blue. They had no clue (nor did I, until I googled it).

            If we check our passionate Apple fanboyism at the door (an few here are more passionate than I), we will all agree that this is a very real problem.

  4. Here Judge Lucy Koh consolidated cases (and issues). In Apple v Samsung, she severely limited issues in the case. Why not simply adjudicate each case as it comes, on the issues pertinent to the case — rather than skiving off cases or issues ostensibly to reduce workload? Each case sets precedent. In the long run, issues, cases, and court decisions would be more clear, and everyone involved would be better off.

    1. Are you kidding?? “skiving off cases or issues to ostensibly reduce workload”?? You could not be more wrong. Courts in this country are incredibly over burdened and judges are overworked. Budget cuts have resulted in years’ long case backlogs and judges working 6 day weeks and 15 hour days.
      Consolidating cases is a common sense measure that (in this case) reduces Apple’s legal fees as well as reducing court waiting lists.
      And no, each case does NOT set a precedent – the vast majority follow precedents and apply them to specific facts. Many of those facts are the same from case to case.
      Your ignorance on the US court system is overwhelming.

      1. 1) Your third sentence does not follow logically from your first two.

        2) None of the three parties involved in the consolidated iMessage lawsuit wanted their legal fees reduced.

        3) A heavy workload is no excuse for poor choices and legal decisions by the DOJ.

        4) The current approach (ie, limiting cases and issues) may only lead to FALSE savings. In the long run, with clearly defined court cases and decisions, FEWER cases may arise, which would reduce future DOJ workload.

        5) There appears to be some confusion between parties as to how previous legal precedent applies to the particular cases, thus: the court cases. However, once the court clarifies how it interprets the law w.r.t. any particular case, new precedent is set; this should help lawyers & legal scholars in determining whether any potential new cases merit court action. Again, this should reduce court workload in future (by reducing cases for which the law is already clear).

  5. Okay, I don’t mean to be mean, but it’s not hard to see where the confusion comes in. Use a smartphone’s messaging app, you expect them to all work the same. And they did for a long time on the iPhone, since it was just a normal SMS app. With the rollout of Apple’s proprietary messaging app on iOS and OS X, people who don’t follow tech blogs and the like probably didn’t know the difference, and certainly wouldn’t have known to go to some web page to read all about how Apple’s Messages worked differently.

    Whether they were harmed irreparably or not is a different matter. But the argument could be made that if they lost business because they weren’t receiving messages they had every reason to believe they could still receive, then there’s a case to be made for that, since typically you don’t have to take any extra steps to fix your messaging client when switching brands of smartphones.

    Apple isn’t always right, y’know? This time they could have been much clearer than just placing some instructions on a website somewhere, or designed the system in such a way where the extra steps to deactivate aren’t required or were done automatically somehow or another. It’s great they change the way things work sometimes, but when they do and it stops people from receiving messages they’re expecting to be able to receive, it’s as much on Apple for making it too complicated (by adding a heretofore necessary step) as it is on the customer for not knowing that the Messages app required extra steps to deactivate.

  6. Yes, but the evidence will be the same. It makes sense to consolidate because it will reduce court time, witness time and reduce the costs of furnishing evidence.

    At the end of the day it will come down to whether Apple responded quickly enough when the issue came to light, and what the impact on the affected users really was.

    As with the MacBook lawsuit Apple does seem to prefer to deal with complaints in court. If Apple loses both this case and the macbook case it will suggest that they change their attitude to customer complaints. But we will have to wait and see if the litigants prove their cases – it may be that they do not…

    1. Agreed. Doesn’t this eventually become a conflict of interest? Any judge is going to start having a bias for or against a particular plaintiff or defendant if it appears before them repeatedly. This judge had her bias well prior to that!

  7. @MDN. I love you guys, but your “Take” is way off.

    You are operating under the assumption that these Android users are mad that they can’t continue to use iMessage on their phone or that they can’t receive iMessages on their phone. That’s not what this lawsuit is about. Get some context!

    1. I can see the case is valid, but it is hard to see any significant “damages”. Just change phone numbers and the problem is solved. “I don’t want to have to change my number!” Life’s tough, you don’t always get exactly what you want. My kids were taught that; unfortunately, most Millennials missed that lesson, and scum-of-the-earth lawyers are always willing to take any case if it could possibly make money.

      1. Perhaps those people that don’t want to change their number request that service simply because it would be a huge waste of time to have to contact each and every person in their contact list that their number had changed.

        1. Oh, boo hoo hoo. They should just put on their big boy pants and change number, or take the extra step necessary to sort the thing out.

          Also, the court case is not a waste of time?

          1. I have had my mobile number for 15 years. I have no intention of changing it just because some obscure feature suddenly prevents me from sending or receiving text the way I’d been doing it for the past 15 years (and six previous versions of the iPhone).

            1. Actually, I shouldn’t need to have to figure anything out. I should be able to just take my SIM card from my old phone, put it in the new phone and begin using that new phone without having to go into some obscure setting on my old phone and changing it before my new phone can properly function. This is absolutely absurd. And Apple really MUST fix this PROPERLY (and whatever solution they have now is nowhere near proper).

  8. The case is not valid, because the claims do not correlate with the process.

    The messages are not SMS, and were never intercepted.

    They were always iMessages. You can tell, each and every one is “blue” and marked with a red !, because they went undelivered.

  9. So let me get this straight… so, heaven forbid, I bought an android and someone tried to FaceTime me and the call I suppose would fail. I would be able to sue someone??

    One thing that does get me though, and one that I figure the law should cover is emergency calls. For instance, if I’m out of range of my subscribers cell tower, but there is another competitors tower in the area…. I cannot make an emergency call.

    1. Utterly wrong. Apple told people its iMessages client would work on SMS and MMS but did not tell people that if the person they were texting changed from iOS to a non-iOS device that their texts would not be delivered. If you were the sender, YOUR iOS device assumed that your friend was still using an iOS device just because he used to. Apple’s systems did not check whether a phone number was still related to an iOS device but automatically treated it as though it was. As a result, your friend would not receive that text. It was nothing to do with him, it was the sender that needed to do something different. And there was NO indication for the sender – the text went out in blue just the same. Nowhere did Apple say “if your friend changes phones you need to change the way you send texts to him/her.” They made things seamless in the way iMessages worked with SMS but forgot about this issue. Many thousands of texts were lost, some of them important.
      I’m an Apple fan and an Apple shareholder but Apple is at fault here.

      1. “And there was NO indication for the sender – the text went out in blue just the same.”

        On my iPhone, when I send an iMessage that can’t be delivered I receive a notification in the form of a red exclamation point next to the message. If I’m not mistaken, if I open up the dialog on that failed delivery I’m then offered the choice to send it as a text message. It seems to me that people simply weren’t being careful when they sent messages.

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