SAN FRANCISCO (Legal Newsline) – Apple is taking another swing at defeating a proposed class action lawsuit it faces that alleges its AirPods Max headphones produce moisture in users’ ears.
Plaintiff John Keeley sued Apple in San Francisco Superior Court in February 2021, but Judge Andrew Cheng in November ruled for Apple on several of his claims. That left him to file an amended complaint in December that now faces apple’s notice of demurrer, which seeks to show his claims are not adequately supported.
“Given an opportunity to cure the deficiencies, Keeley (and new plaintiff William Graham) mostly repeat the same allegations this Court previously held to be insufficient – and the few new allegations they add do not save their claims,” attorneys for Apple wrote in February.
“Like Keeley before him, Graham never identifies a single affirmative misrepresentation on the part of Apple (much less one he personally relied on) and never alleges that he is unable to use AirPods Max such that the device is ‘unfit for ordinary purpose.’”
Adding customer complaints from Twitter and Reddit that were posted after Keeley’s purchase doesn’t help his case either, the company says.
According to his complaint, Keeley purchased Apple's AirPods Max headphones along with AppleCare+ on Dec. 8, 2020. He alleges that about a week after receiving his AirPods, he began to notice "excessive condensation in the ear cups due to a defect."
He claims he contacted Apple on Jan. 5, 2021, to request repairs but by mid-January, he was no longer able to use his AirPods outside due to the condensation forming and that he experienced "connectivity and performance" issues including not being able to connect to a wireless network or maintain a battery charge.
Keeley claims the AirPods design has "latent and material" defects and that Apple falsely represented the AirPods "had characteristics and benefits that they do not have" and were "of a particular standard, quality, or grade."
Keeley is represented by Todd Schneider of Schneider Wallace Cottrell Konecky in Emeryville and Shannon Carson and Amey Park of Berger Montague in Philadelphia.
Judge Cheng’s order threw out four causes of action completely and part of a fifth, while letting only a single claim go forward in whole – breach of express warranty.
Tossed claims included fraud and violation of the Consumer Legal Remedies Act.