iPhone users file class action over multimedia messaging

By Michelle Massey, East Texas Bureau | Dec 21, 2009

PLANO -- A recent class action seeking more than $5 million alleges that iPhone users were cheated, deceived and defrauded out of their money because they bought a cellular phone that did not have multimedia messaging service.

Individually and on behalf of similarly situated individuals, Henri and Allison Friloux filed the class action against Apple Inc. and AT&T Mobility LLC on Dec. 16 in the Plano office of the Sherman Division of the Eastern District of Texas.

The proposed class will include all Texas residents who purchased a "3G" or "3-GS" iPhone from July 1, 2008, until the date of final judgment or settlement.

Launched as a joint venture with AT&T, the original iPhone "2G" debuted in January 2007. The next generation or "3G" launched in July 2008 and the most recent the "3-GS" debuted in June.

The original iPhone did not allow multimedia messaging service or "MMS." This service would have allowed users to send pictures.

The lawsuit states that Apple and AT&T heavily advertised that the newer version of the iPhone, the 3G and 3G-S, would allow multimedia messaging. But the plaintiffs claim that when the new phones came out, customers realized that the messaging service was not available.

AT&T addressed the issue on its Web site, telling customers that the multimedia message could be viewed using a computer.

In addition, in the Answer Center on the Web site, AT&T stated "iPhone does not support sending, or receiving picture, audio, or video multimedia messages. If an MMS is sent to the iPhone, it will receive a text message that contains a link to a Web site address where the message can be viewed."

The plaintiffs claim the response was the same as AT&T telling them "tough luck."

In June, the defendants released a software update for the iPhone and told customers the update would allow the messaging service.

However, the plaintiffs state that after calling Apple Customer Support they learned that AT&T's towers do not support, nor would their phones support, the multimedia messaging service. The lawsuit states that the defendants' Web sites showed a disclaimer, "MMS support from AT&T coming in late summer."

The lawsuit will attempt to discover whether the defendants concealed or suppressed facts such as the AT&T towers would not support the MMS, the towers would not be upgraded for months and the software upgrade would not, by itself, solve the problem.

"All the millions of purchasers of the 3G and the 3G-S iPhone have been deceived and cheated out of what they thought they were purchasing – a phone with MMS functionality," the lawsuit argues.

The plaintiffs claim that the defendants violated the Texas Deceptive Trade Practices Act by deceiving or misrepresenting the phone's functions.

Other causes of action filed against the defendants include civil fraud, tort, conspiracy to defraud and unjust enrichment.

The named plaintiffs bought their cell phones in June and were not able to use the multimedia messaging service until sometime in late September.

Arguing the defendants' actions were "intentional and outrageous, without any justification or excuse," the plaintiffs are seeking more than $5 million for compensatory damages, mental anguish, punitive damage and attorneys' fees.

Jury trial is requested.

Class counsel includes New Orleans attorney Stott Bickford of Martzell and Bickford and Bogalusa attorney Ronnie G. Penton of the Penton Law Firm.

U.S. District Judge Michael H. Schneider has referred the case to Magistrate Judge Amos L. Mazzant for pretrial proceedings.

Case No: 4:09cv00618

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