Apple Class Action: iPhone Users not Reimbursed for ‘Error 53’

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In a class action lawsuit alleging that an update to Apple iPhones caused users to lose their data, the plaintiffs argued against a motion to dismiss the claims, saying Apple never reimbursed them or proposed Class Members.

Lead plaintiffs Nicholas Lusson, Bryan Kushmick, Alexander Saenz, John Denoma and Nora Penner alleged in their class action lawsuit that an iOS update released by Apple caused their and others’ mobile phones to shut down and lose data. The plaintiffs claimed that the update caused phones to receive an “Error 53” screen and then go dead, or become “bricked.”

Apple filed a motion to dismiss the class action in early May. Apple argued that there was “nothing left to litigate” because the company had already reimbursed affected iPhone owners who had to purchase new phones after the update and they fixed the update to restore affected phones.

Additionally, the company pointed out in their motion to dismiss that affected iPhones had Touch IDs that were either damaged or replaced by third party vendors, a practice that the company warned iPhone users to avoid. In fact, Apple said that iPhone users were warned to only use Apple technicians or authorized service providers for repairs because it would affect their warranty. Apple also said that the class action claims arose after the one-year warranty had expired.

In response, the plaintiffs argue that the supposed fix to the update problems has not worked well. The plaintiffs also point out that Apple has not established that it notified customers about reimbursing them for purchases made in response to the Error 53 update problem.

“Penner and Saenz have attempted to install the iOS update that renders bricked devices operable again with marginal-to-no results,” say the plaintiffs in their opposition.

The class action plaintiffs also argue that Apple’s contention that iPhone owners were warned not to use third party vendors was not specific enough. Apple should have warned iPhone and iPad users with repairs made by third party vendors about the Error 53 code prior to releasing the update, argue that plaintiffs.

The plaintiffs also point out that Apple’s year-long warranty only applies to hardware, not software updates like the one that led to the Error 53 code.

In response to Apple’s argument that it already reimbursed iPhone users affected by the Error 53 code, one of the plaintiffs pointed out that he attempted to contact Apple for a reimbursement twice and each time he was disconnected after a 30 to 40-minute hold time. The plaintiffs contend that others may have been dissuaded from attempting to obtain reimbursement after facing similar obstacles while trying to get in touch with Apple.

The iPhone owners are represented by Darrell L. Cochran, Jason P. Amala, Loren A. Cochran, Kevin H. Hastings and Christopher E. Love of Pfau Cochran Vertetis Amala PLLC.

The Apple iPhone Error 53 Class Action Lawsuit is Nicholas Lusson, et al. v. Apple Inc., Case No. 3:16-cv-00705-VC, in the U.S. District Court for the Northern District of California.

UPDATE: On June 20, 2016, a federal judge dismissed all claims in an iPhone class action lawsuit that alleged Apple had used Error 53 to render the devices inoperable.

UPDATE 2: On Aug. 31, 2016, iPhone users argue that the additional facts noted in their third amended class action complaint prove Apple knew a software update would cause the Error 53 defect but intentionally retained these features anyway.

UPDATE 3: On Oct. 19, 2016, Apple will continue to face a consumer class action lawsuit following a federal judge’s partial denial of the company’s motion to dismiss.

UPDATE 4: On Sept. 1, 2017, Apple agreed to settle individual claims with 169 iPhone users who allege their devices were wiped clean after a software update. If approved, the Apple settlement would resolve the individual claims of the 169 affected iPhone users, but would also leave open the possibility for other consumers to pursue a class action lawsuit against Apple.