Plaintiffs Joseph Birdsong and Bruce Waggoner filed a class action complaint claiming that Apple, Inc.’s iPod is defective because it poses an unreasonable risk of noise-induced hearing loss to users. The district court, concluding that the plaintiffs failed to state any claim and lacked standing under the Unfair Competition Law ("UCL"), dismissed. In Birdsong v. Apple, Inc. (December 30, 2009) the Ninth Circuit affirmed.
First, the Court noted the warning that accompanied every iPod:
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 Permanent hearing loss may occur if earphonesor headphones are used at high volume. You can adapt over time to ahigher volume of sound, which maysound 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.
Slip op., at 16870-71. The Court then concluded that the Implied Warranty of Merchantability claim failed on the pleadings:
The district court did not err. The plaintiffs admit that the iPod has an “ordinary purpose of listening to music,” and nothing they allege suggests iPods are unsafe for that use or defective. The plaintiffs recognize that iPods play music, have an adjustable volume, and transmit sound through earbuds. The third amended complaint includes statements that (1) the iPod is capable of playing 115 decibels of sound; (2) consumers may listen at unsafe levels; and (3) iPod batteries can last 12 to 14 hours and are rechargeable, giving users the opportunity to listen for long periods of time. Taken as true, such statements suggest only that users have the option of using an iPod in a risky manner, not that the product lacks any minimum level of quality. See Am. Suzuki, 37 Cal. App. 4th at 1296.
Slip op., at 16873. After identifying claims that were apparently abandoned on appeal, the Court then examined standing under the UCL. First, the Court noted that because the underlying Implied Warranty claim failed, the plaintiffs could not state a UCL claimed predicated upon unlawful conduct, leaving only the assertion of "unfair" practices. Slip op., at 16876. Next, the Court concluded that the plaintiffs had not alleged an injury of any form to themselves:
Although the plaintiffs allege that Apple has sold more than 100 million iPods, they do not claim that they, or anyone else, have suffered or are substantially certain to suffer hearing loss from using an iPod. As discussed above, as a result of this omission, the plaintiffs fail to state an implied warranty claim, and they have no standing to assert a UCL claim. The plaintiffs simply do not plead facts showing that hearing loss from iPod use is actual or imminent, as required. Buckland, 155 Cal. App. 4th at 814. To the contrary, the plaintiffs’ third amended 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.
Slip op., at 16878. The plaintiffs tried to work around this problem by claiming that they did not receive the benefit of their bargain, but the Court noted that the plaintiffs admitted they received the volume warning and received no promises of performance that were not fulfilled.
I've had at least 5 iPods of varying types. I still hear fine. It's my daughter I worry about. Me: "Eat your dinner!" Her: Glassy-eyed stare into the distance. It must be hearing loss. I just can't figure out how my iPods did it, seeing as how she is 4 and doesn't listen to my iPods.