Cates suit against Apple seeks chunk of iPhone 4S profits; Location data used to develop technology, suit claims

Steve Korris Oct. 27, 2011, 8:10am


EAST ST. LOUIS – Appellate court candidate Judy Cates of Swansea and East St. Louis lawyer Christian Montroy, pursuing a class action against Apple for allegedly tracking movements of iPhone owners, now claim the class deserves a chunk of profits from sales of the new iPhone 4S.

On Oct. 18, they alleged that Apple secretly stored location data of customers in order to develop technology it built into the new product.

"Apple was enriched by the hundreds of millions of dollars of additional sales of mobile devices due to the location tracking services it illegally researched and developed," they wrote.

They asked U.S. District Judge Michael Reagan for leave to amend a complaint Montroy filed in April, so they can broaden the claims and add a second plaintiff.

On Oct. 24, Magistrate Judge Donald Wilkerson set a Nov. 18 deadline for Apple to respond.

Cates plans to run for a seat at the Fifth District in Mount Vernon next year.

She ran unsuccessfully for the Fifth District in 2008.

She and Montroy represent Cynthia O'Flaherty, whose original complaint sought damages for a statewide class under Illinois computer tampering and consumer protection laws.

O'Flaherty sued nine days after British Broadcasting Corporation reported that Apple could stalk iPhone owners with the new iOS 4 operating system.

"The accessibility of unencrypted information collected by Apple places users at serious risk of privacy invasions, including stalking," Montroy wrote.

He wrote that Apple's terms of service didn't disclose that it comprehensively tracked users.

He wrote that information might be subpoenaed and become public in the course of litigation, including divorce proceedings.

"Plaintiff and her proposed classes face the risk of their private location information being obtained by malicious third parties and made public," he wrote.

He wrote that Illinois computer tampering law provides for civil and criminal actions.

"Violation of this law is a class four felony for the first offense and a class three felony for the second or subsequent offense," he wrote.

Cates entered her appearance on behalf of O'Flaherty in July.

If Reagan allows them to amend the complaint, they will allege that O'Flaherty removed the chronological data from her phone on Sept. 18.

"This data showed every place that plaintiff visited between July 7, 2010, and September 14, 2011, and it displayed the times that she was at each different location," they wrote.

They wrote that the data was 37 megabytes.

They identified Benjamin Henning as their second plaintiff, writing that his data was between eight and 37 megabytes.

They wrote that Apple's data system reappropriated memory from O'Flaherty and Henning.

"The value of the memory that Apple reappropriated on the mobile devices of plaintiffs and their proposed class was worth between 25 cents and two dollars and 31 cents," they wrote.

They wrote that Apple used the technology to provide new "Find My Friends" and "Find My iPhone" applications with its iPhone 4.

"The iPhone 4S broke all prior pre-order records for sale of a phone as a result of its illegal means of product development," they wrote.

"Apple advertised these location tracking features, and its success in selling the iPhone was due to these features," they wrote.

"Plaintiffs and their putative class are at a continued safety risk as a result of the personal information that Apple surreptitiously disclosed," they wrote.

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