An attorney who is familiar with Apple and the events so far has provided TMO with some background that helps clarify how legal events will proceed. It’s not just a question of Apple offering a free bumper at this point.
First, Apple needs to have its own technical understanding of the problem. Field evidence, tests conducted by Websites, and anecdotal evidence just isn’t sufficient. Given that some of the testing before release may have been conducted with a case designed to make the iPhone 4 look like a 3GS, the process may have provided Apple with non-definitive data. It’s time for Apple engineers to go back to the lab and provide Apple executives and chief legal counsel with their best estimate of the problem and potential remedies.
The next thing to consider is that the several class action lawsuits in progress cannot be avoided by simply admitting liability and being done with it. That would be premature.
Assuming Apple develops and understanding of the problem and comes up with a fix, a possible settlement can be published in what’s called the class notice (for the class action lawsuit). In that notice, Apple can propose a remedy without admitting a problem. It’s important to note that a proposed remedy cannot be used as evidence by the plaintiffs.
Let’s say, for the sake of argument that Apple does come to an understanding about how to fix the problem on current models. The members of the class action lawsuits could agree to accept the remedy or opt to stay with the lawsuit, betting on whether they’ll get a more robust remedy. Alternatively, Apple could offer a discount coupon on an iPhone 5 if a good fix isn’t possible.
In any case, it’s not wise for Apple to just jump in, admit liability at this point until it knows more. All that would do, anyway, is to shortcut the the trial and jump directly to the penalty phase. Apple needs time to fully understand the issues first.
A couple of additional points made by our legal observer: While efforts to propose a remedy in the class notice can’t be held against Apple by the plaintiffs, recent e-mail remarks by Steve Jobs, if proven authentic could be. So it’s important for Apple to work only through the general counsel’s office. After all, the iPhone is marketed as a wonderful, magical device a cut above the rest. So Apple needs to be careful about what its CEO says on the record.
Next, there were reports recently that Apple support personnel were advised not to make an ad hoc offer of a bumper. That’s not because a bumper is ineffective or it would cost too much money. A bumper probably costs Apple US$5 to make. Rather, if at some point, Apple decides that a bumper is the right kind of remedy to offer, and that’s not for sure, it should be done through the formal legal process, not in one-off support cases.
Finally, by not admitting liability and seeking to have a definitive understanding of the problem, Apple may find that a field solution, if accepted by the vast majority of the class, could take the wind out the sails of the plaintiffs. If that happened, there wouldn’t be much point in continuing the trial because not enough money would be made by the plaintiff attorneys. They’ll be faced with that choice down the road.
In summary, Apple has a lot to gain by having an accurate, engineering understanding of the problem and a remedy acceptable to the court. In time, the class action suits could very well dissipate as customers agree with Apple that a proposed fix satisfies them. Don’t look for Apple to just roll over, admit any liability at this point, and rush to offer a free bumper — especially if there is a smarter, more effective solution, say, a special coating.
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Note this editorial is opinion, not legal advice, and is meant to provide insights into events surrounding the iPhone 4 antenna issue.