Kyla Asbury May 30, 2014, 12:05am

SAN JOSE, Calif. (Legal Newsline) - A class action has been filed against Apple after a woman claims Apple wrongfully intercepted text messages when she switched to a non-Apple device.

Adrienne Moore brought the action on behalf of herself and all other similarly situated persons within the United States who obtained wireless cellular service on an Apple iPhone or iPad device that was equipped with Apple's iMessage service, and subsequently replaced that device with a non-Apple device instead, according to a complaint filed May 15 in the U.S. District Court for the Northern District of California.

"When plaintiff and the putative class members subscribed to cellular service through these Apple iPhone or iPad devices, they had, as part of their cellular service contract and Apple device ownership, the ability to send and receive text messages," the complaint states. "To accomplish this task, these Apple device users employed an Apple service and application that were part of Apple's software operating system, and that are known respectively as iMessage and Messages."

Moore claims unbeknownst to her and the class members, however, once they switched from an Apple iPhone or iPad to a non-Apple device for their wireless service needs, Apple's iMessages and Message service and application still retained text messages that were directed at these persons from other Apple users, and failed to deliver these text messages to the class members as long as these class members continued using a non-Apple device.

In this manner, Apple tortiously interfered with the contract for cellular service between these putative class members and their cellular telephone carrier in that Apple's actions prevented the subscribers from receiving all of their text messages, as they were entitled to obtain through their cellular wireless service contracts, according to the suit.

"Further, Apple failed to properly disclose to plaintiff and the putative class members, at the time that they owned their Apple iPhone or iPad devices...that, should they switch away from an Apple device to a non-Apple device, Apple's iMessage and Messages service and application would act to prevent these persons from receiving all their text messages on the non-Apple device that these class members used to replace their Apple iPhone or iPad devices," the complaint states.

Moore claims through this material omission, Apple violated the California Legal Remedies Act and California's Unfair Competition Law.

After Moore switched from her Apple iPhone to an Androir phone, Apple's iMessage system prevented her from receiving "countless" texts, according to the suit.

Today, text messaging is the most widely used mobile data service, with 74 percent of all mobile phone users worldwide, or 2.4 billion out of 3.3 billion phone subscribers, according to the suit.

"Traditionally, text messages were and are sent between the texter and the recipient through a cellular network," the complaint states. "After the texter composes the text message and hits the 'Send' or similar button on his wireless device, the text message is transmitted in SMS format through the cellular network to an interim facility known as the SMS Center."

Moore claims from there, the SMS transmission is routed to a transmission tower of the network and the network's transmission tower, in turn, sends the message to the recipient's wireless device through that device's control channel.

"At that point, the recipient receives notification on his device of the actual SMS (or MMS) text message," the complaint states. "Given the popularity of text messaging, today, wireless service providers, like Verizon Wireless, AT&T, Sprint, T-Mobile and others, provide their users with the facility to send and receive text messages."

Part of the contractual relationship, therefore, between the plaintiff and other putative class members and their respective wireless service providers is the subscriber's ability to send and receive text messages as part of their subscription, according to the suit.

Moore claims on Oct. 12, 2011, Apple released its OS 5 update to the software powering Apple wireless devices, such as iPhones and iPads.

"As part of that updated, Apple included its iMessage service, which contained Apple's Messages client application," the complaint states. "As part of that and subsequent Apple software versions, Apple's software on Apple iPhone and iPad wireless devices would employ iMessage and Messages, instead of the traditional SMS network route, to send text messages between users of Apple wireless devices who had an enbabled iMessage service on their device."

As a result of Apple's software upgrade, if a user's iPhone or iPad is running iOS 5 or greater, the Message messaging application will send text messages as an iMessage instead of the usual text message when the text message is being sent between users who have the Apple iMessage service on their devices, according to the suit.

Moore claims this means that if one is sending text messages with another iOS 5 user, there is no SMS charge associated with the messaging.

"It is merely treated as an additional data transfer," the complaint states. "The undisclosed drawback that forms the gravamen of this action concerns the manner in which Apple's iMessage and Messages act once an iPhone or iPad user switches their wireless telephone number to a non-Apple device, as plaintiff did recently."

Once that occurs, the former Apple device user, who now uses a non-Apple device, is unable to receive text messages sent to her by users of Apple devices that employ iMessage and Messages, according to the suit.

Moore claims due to an undisclosed feature in Apple's iMessage and Messages service and application, the Apple Message application does not recognize that the same telephone number of the former Apple device user is no longer using an Apple device and hence is no longer using iMessage or Messages.

"Thus, when a text message is sent from an Apple device user to a person whose telephone number used to be associated with an Apple device but is now used on a non-Apple telephone, the message is not delivered to the non-Apple device user on her new non-Apple device," the complaint states. "Worse yet, this person receives no notification whatsoever that a text message directed to her was not delivered."

The effect is readily apparent and, solely as a result of Apple's doing, the plaintiff, like other wireless carrier subscribers who replace their Apple devices with non-Apple wireless devices, are penalized and unable to obtain the full benefits of their wireless service contracts because Apple's iMessage and Messages service and application prevent these users from receiving the text messages that they are entitled to receive as part of their wireless service contracts with their wireless providers, according to the suit.

Moore claims Apple knew but never disclosed that its iMessage service and Message application would prevent Apple device owners from receiving text messages sent to them from other Apple users once these Apple device owners replaced their devices with non-Apple wireless devices.

"To the contrary, Apple touted the superior attributes and enhanced benefits of the iMessages and Message service and application while omitting any mention of this serious consequence," the complaint states. "Had plaintiff and the class members been informed by Apple that iMessage would work in such a fashion so as to prevent them from receiving text messages, once they switched their Apple devices to non-Apple devices, plaintiff and the putative class members would not have downloaded the iMessage and Messages service and application, or would not have purchased an iPhone or other Apple device in the first instance."

Shortly after Moore switched from her Apple iPhone 4 to a Samsung S5 and kept her same cell phone number, she began noticing she was not receiving text messages that she had been expecting to receive from texters who were using Apple iPhone or iPad devices, according to the suit.

Moore claims upon noticing the problem, she contacted Verizon and was told she needed to turn off iMessage in her old iPhone, which she did, but it did not resolve the problem.

Moore is seeking compensatory damages. She is being represented by Roy A. Katriel of the Katriel Law Firm.

The case has been assigned to District Judge Lucy H. Koh.

U.S. District Court for the Northern District of California case number: 5:14-cv-02269

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