Metropolitan News-Enterprise


Thursday, December 31, 2009


Page 1


Ninth Circuit Dismisses Class Action Suit Over IPod Volume


By STEVEN M. ELLIS, Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday affirmed an order throwing out a class action claiming Apple Inc.’s iPod is defective because it poses an unreasonable risk of noise-induced hearing loss to users.

A three-judge panel held that Joseph Birdsong and Bruce Waggoner failed to state claims for breach of the implied warranty of merchantability and fitness for a particular purpose, and lacked standing to assert a claim under California’s Unfair Competition Law.

According to Birdsong, a California resident, and Waggoner, of Louisiana, the iPod—an electronic device which stores and plays digital audio files, and comes with a set of detachable “earbud” headphones—is capable of producing sounds as loud as 115 decibels.

‘Obvious’ Danger

However, U.S. District Judge James Ware of the Northern District of California dismissed their complaint after finding that any dangers of hearing loss were “obvious” and “avoidable.”

Apple includes a warning with each iPod which states:

“Permanent hearing loss may occur if earphones or headphones are used at high volume. You can adapt over time to a higher volume of sound, which may sound normal but can be damaging to your hearing. Set your iPod’s volume to a safe level before that happens. If you experience ringing in your ears, reduce the volume or discontinue use of your iPod.”

Birdsong and Waggoner argued on appeal that consumers might listen to iPods at unsafe levels given the device’s sound-production capacity, and that consumers could do so for up to 14 hours at a time with its rechargeable battery.

But Senior Judge David R. Thompson said that the complaint failed to state claims for breach of the implied warranty of merchantability and fitness for a particular purpose where Birdsong and Waggoner alleged that users had the ability to use an iPod in a manner that could result in hearing loss, but did not claim the product lacked any minimum level of quality or failed to do what it was designed to do.

“[T]he plaintiffs make no allegations of any history of malfunction, but merely suggest possible changes to the iPod which they believe would make the product safer: (1) earbuds with noise-reduction features; (2) volume control software; (3) more and different warnings printed onto the actual iPod; and (4) a digital meter to display the output volume in decibels,” he said.

“The plaintiffs fail to allege, however, how the absence of their suggested changes caused any user an injury.”

Unfair Competition Claim

Thompson also wrote that Birdsong and Waggoner lacked standing to assert a claim under California’s Unfair Competition Law where they did not claim any hearing loss themselves from iPod use, or that they used their iPods in a way that exposed them to a risk of hearing loss.

“[The complaint] reveals the conjectural and hypothetical nature of the alleged injury as the plaintiffs merely assert that some iPods have the ‘capability’ of producing unsafe levels of sound and that consumers ‘may’ listen to their iPods at unsafe levels combined with an ‘ability’ to listen for long periods of time,” he said.

The judge further rejected Birdsong and Waggoner’s argument that the iPod’s inherent risk of hearing loss reduced the value of the devices and denied the plaintiffs the full benefit of their bargain because they could not “safely” listen to the music.

He noted that the plaintiffs “failed to allege a cognizable defect,” and said that they could not show injury by “the loss of a ‘safety’ benefit that was not part of the bargain to begin with.”

Senior Judge J. Clifford Wallace and Judge Sidney R. Thomas joined Thompson in his opinion.

The case is Birdsong v. Apple, Inc., 08-16641.


Copyright 2009, Metropolitan News Company