iPhone taken on by experienced class action litigator

By Jesse Ammerman | Aug 3, 2007

Less than a month after Apple released its iPhone, an attorney well-versed in products liability class actions filed an action over the product in Cook County.

On behalf of Jose Trujillo of Melrose Park, Ill. and all others that purchased the product since its release, Chicago attorney Larry D. Drury filed a complaint July 26.

The six-count class action, filed against Apple and AT&T, alleges fraudulent concealment, violation of the Illinois Consumer Fraud and Deceptive Business Practices Act, breach of contract, breach of implied warranties, unjust enrichment and accounting.

According to the suit, were it not for the "ninth-inning disclosure by defendants" that the iPhone's battery was welded inside the equipment and could only be replaced by returning the phone for maintenance, Trujillo and all other members of the class would never have purchased the phone.

The complaint does not state when Trujillo purchased his iPhone, or whether he did so before or after Apple published information about the battery-replacement program on its web site.

The iPhone battery replacement program, as explained by Apple upon the phone's release, requires the customer to submit their phones to Apple when a battery needs to be replaced or serviced.

Apple charges $85.96, including shipping, for service of each phone. According to the complaint, this amounts to a "de facto annual maintenance fee," given that a new iPhone battery is estimated to last for approximately 300 charges.

Trujillo's complaint alleges that Apple and AT&T "purposefully omitted, misrepresented, and/or fraudulently concealed the durability of the iPhone battery," as well as the terms and conditions of the replacement program.

The lawsuit calls the defendants' conduct "unfair, immoral, unethical, oppressive, and unscrupulous… Absent the defendants' fraud, the plaintiff and the class would have never purchased the iPhone from defendants or transacted business with defendants."

The complaint expressly seeks less than $75,000 for each plaintiff, as a means of skirting federal jurisdictional requirements and keeping the case in Cook County's Circuit Court.

The complaint was submitted by Drury and James Rowe of Larry D. Drury, Ltd., a downtown Chicago firm. Drury, 63, lives in Highland Park, Ill. and practices law in Illinois and several other states. Drury attended the John Marshall Law School and was admitted to the Illinois bar in 1970.

Drury, a Democrat, ran unsuccessfully for a spot on the Illinois Supreme Court against Justice Robert Thomas in 2000, but is best known in Illinois for his work as counsel in tort claims and class actions. In recent years, Drury has served as class action counsel against a host of corporate defendants, including Microsoft, Ford Motor Co., Wal-Mart, AOL, Intel, Southwest Airlines, United Airlines, Motorola, Nintendo, Hooters, and more.

In 1991, Drury was involved in a widely-reported class action suit against Arista Records for its marketing of an album by the disgraced pop duo Milli Vanilli.

As part of the Milli Vanilli consumer-fraud settlement, consumers were entitled to $1-$3 rebates while Drury and his fellow counselors pocketed a healthy portion of the multimillion dollar agreement.

"At the end, sure, we'd like to get paid," Drury told the press at the time.

Drury also served as co-lead counsel in the recent class action suit against James Frey and Random House over the publication of "A Million Little Pieces." The memoir stirred controversy in 2006 when elements of the book were admitted to be fictionalized.

Drury and Evan J. Smith of Brodsky & Smith led the consumer-fraud class action, alleging that the author and publisher misled the public in marketing the book as a memoir instead of a novel.

The case was settled in April 2007 for $2.35 million, pending a fairness hearing in November 2007. Under the terms of the proposed settlement, each class plaintiff will be entitled to a refund up to the full purchase price of the book, depending on what funds remain after attorney's fees are distributed to Drury and Smith.

Drury's other pending suits include cases against Philip Morris, BP, and Shell Oil. The Shell case is a class action alleging that Shell and other oil companies fraudulently overcharged consumers for gasoline. The action against Shell was partially dismissed in March 2007 for failure to meet the heightened pleading requirements for fraud.

In addition, Drury is spearheading class-action litigation against McDonald's for allegedly misrepresenting the gluten content in the company's french fries.

The suit alleges fraud, deceptive and unfair trade practices, and unjust enrichment - allegations similar to those leveled against Apple in Drury's iPhone case. The McDonald's case (In Re McDonald's French Fry Litigation), was partially dismissed in May and is currently proceeding in the Northern District of Illinois.

Most recently, Drury filed a class action complaint against Procter & Gamble in the U.S. District Court for New Jersey over tainted cat food allegations.

The suit was filed on July 30 - days after Drury filed suit against Apple and AT&T. The Procter & Gamble suit (Johnson v. The Procter & Gamble Company, et al.) stems from the March 2007 recall of certain pet food products that allegedly caused renal and kidney problems for cats that consumed Iams brand cat food.

The cat food suit alleges unfair trade practices, negligence, strict liability, and unjust enrichment against Procter & Gamble and several other defendants. Joining Drury as co-lead counsel in the class action are Frank Jablonski and Ilan J. Chorowsky of the Progressive Law Group, LLC.

Meanwhile, Drury's class action against Apple and AT&T is set before Judge Sophia H. Hall in the Circuit Court of Cook County's chancery division. The initial case management conference is scheduled for Dec. 12.

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