9th Circuit Denies Rehearing Petition in iPhone Siri Class Action

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Reaffirming their previous dismissal order, a Ninth Circuit U.S. Court of Appeals panel voted to deny a Class request for rehearing of a putative class complaint against Apple that accuses the company of misrepresenting the speech capabilities of its iPhone 4S product.

The plaintiffs filed the petition for rehearing after the panel dismissed the lawsuit filed over the functionality of “Siri,” the digital assistant on Apple Inc.’s iPhones, with prejudice earlier this year siding with Apple’s argument that the company never made any solid claims over the consistency of the Siri voice recognition feature.

Apple asked the court to reject the consumers’ petition for rehearing, stating that after the Ninth Circuit dismissed the case in February, the plaintiffs shifted their arguments to fraud, citing two Ninth Circuit cases, Vess and Kearns, for precedent.

Apple contends that these lawsuits do not apply to the plaintiffs’ complaint, because they lacked plausibility for nonfraud claims.

After reviewing the arguments for rehearing en banc, the three-judge panel again upheld its dismissal of the proposed class action. The Appeals Court maintained its assessment that the allegations about the capabilities of the Siri speech recognition software were too broad, and did not meet the pleading requirements under the Federal Rules of Civil Procedure.

Plaintiffs Frank Fazio, Carlisa Hamagaki, Daniel Balassone and Benjamin Swartzmann filed separate class action lawsuits that were consolidated in 2012 against Apple involving its iPhone 4S product, alleging that that Siri’s speech recognition did not perform as advertised and was frequently unable to understand them or to locate the information they asked.

The plaintiffs claimed that Siri could not even mirror the commands given in Apple’s advertising. The plaintiffs alleged violation of California’s unfair competition law, the California Consumer Legal Remedies Act and California’s False Advertising Law, as well as breach of express warranty, intentional misrepresentation and negligent misrepresentation.

The case was first dismissed in 2012 and again dismissed with prejudice in 2014, with U.S. District Court Judge Claudia Wilken saying that the claims relied on “non-actionable puffery” and ruling that the plaintiffs failed to show adequate evidence of fraud in Apple’s advertising and that a “reasonable consumer” would not expect the product to work flawlessly.

The plaintiffs had argued that advertisements featuring Siri made it appear as though the feature could handle any query and would respond instantly.

Because the lawsuit was dismissed with prejudice, the plaintiffs were allowed to bring another action over the same claims, but have yet to be successful.

Back in February, the Ninth Circuit upheld its Judge Wilken’s dismissal ruling on grounds that the plaintiffs were not specific enough about how Apple had misled them. Specifically, the panel said that the plaintiffs’ attorneys failed to show how Apple’s ads in the run-up to Siri’s release misinformed the Class.

The consumers are represented by Steven Hubachek, Kevin Green, Mark Dearman, Shawn Williams, Paul Geller and Kathleen Barber of Robbins Geller Rudman & Dowd LLP; Ben Barnow and Erich Schork of Barnow & Associates PC; and James Notis and Jennifer Sarnelli of Gardy & Notis LLP.

The Apple iPhone Siri Class Action Lawsuit is In re: iPhone 4S Consumer Litigation, Case No. 14-15487, in the U.S. Court of Appeals for the Ninth Circuit.