Two recent class action lawsuits against AT&T and Apple raise interesting questions about adequate disclosures

Two class action lawsuits have been filed against AT&T and Apple over the current lack of MMS (multimedia messaging) support for the iPhone 3G and 3GS.  But first, some basic technical background information is in order.  MMS permits the transmission of pictures, video and other media over an extension to the SMS standard (text messaging system).

"The first lawsuit, filed in the Southern District of Illinois by Tim Meeker, claims that Apple and AT&T misrepresented material facts about the iPhone's support of MMS. Meeker claims that he went to buy an iPhone 3G in March at an AT&T store. When he asked about MMS support, he was told that it would be added in a forthcoming update to the iPhone OS in June."  Chris Foresman, Tired of waiting for AT&T to enable MMS on iPhone? Sue! (August 15, 2009) The other case, filed in the Eastern District of Louisiana by Christopher Carbine, Ryan Casey, and Lisa Maurer, has almost identical language to the lawsuit filed in Illinois by Meeker."  Id.

When Apple announced the iPhone 3GS and its 3.0 Operating System in June, at the WWDC, Apple indicated that MMS functionality was built into the operating system but would not be available in the United States until later in the year.  This raised an interesting question about these class action lawsuits.  When are representations imputed to customers?  The WWDC announcement received widespread coverage in the tech media.  I watched live blogging of the event on (wait, I was working then, so nevermind).  But most consumers probably don't watch coverage of WWDC.  Let's assume that AT&T stores were promising MMS functionality was coming in June, before the WWDC announcements.  That situation is easier to analyze, since there is no conflicting information.

But what happens when that same AT&T store is silent about the absence of MMS functionality after the June WWDC event.  Does it have a duty to tell consumers about the lack of MMS?  Is MMS functionality even material?  (Parenthetically, I can e-mail pictures to an AT&T phone's e-mail address and get around this limitation, but I don't know how many people are aware of that option.)  Does a consumer need to ask about MMS to indicate that it is material?  Is the WWDC announcement and related converage sufficient to put consumers on notice about the delay in MMS functionality?  What about fine print on AT&T's website?

I'm not offering answers to these questions, but the questions are of interest to me and I thought I'd share them.