Apple Tries to Dismiss iTunes Double-Billing Class Action Lawsuit

Lead plaintiffs Robert Herskowitz and Phoebe Juel allege in the Apple iTunes class action lawsuit that this double-billing constitutes breach of contract, bad faith, fraud, unjust enrichment and violations of the Consumers Legal Remedies Act.

Apple moved to dismiss the class action lawsuit on Tuesday, saying the plaintiffs “do not and cannot point to any legal obligation requiring Apple to provide them with a second download of the same song free of charge. To the contrary, their agreement with Apple expressly bars that claim, and provided an express and exclusive remedy that plaintiffs ignore.”

Apple says iTunes clearly discloses that multiple charges accompany multiple downloads of the same song.

“The agreement expressly states that iTunes songs ‘may be downloaded only once and cannot be replaced if lost for any reason,’” Apple’s attorney said in court.

Apple says Juel’s inability to find the missing song on her computer “was almost certainly due to user error and not any fault of Apple’s,” and that Juel “never contacted Apple or attempted to take advantage of her contractual remedy,” Apple said in its motion to dismiss the class action lawsuit.

Apple makes a similar argument for Herskowitz, saying he downloaded “the same song a second time without first contacting Apple to take advantage of the exclusive contractual remedy.”

Apple further argues that the plaintiffs cannot bring claims of CLRA violations because the law does not apply to software such as iTunes – only to “goods” or “services.”

The iTunes class action lawsuit is brought on behalf of all customers who made more than one download of the same song from iTunes, only to discover that Apple charged them every time. It is seeking more than $5 million in damages.

The Apple iTunes Download Class Action Lawsuit case is Herskowitz, et al. v. Apple, Inc., Case No. 12-cv-2131-LHK, U.S. District Court, Northern District of California, San Jose Division.