By Hannah Albarazi, Feb 6, 2020 | Original Law 360 article here.
U.S. District Judge William Alsup said Thursday he’s inclined to let a jury decide whether Apple fraudulently marketed iPhones as safe and exposed consumers to excessive radiofrequency radiation, slamming an FCC testing standard as "a terrible rule" and expressing disbelief that the agency "would be that dumb."
Apple Inc. urged Judge Alsup at a hearing in San Francisco to dismiss a proposed class action alleging that it deceives consumers by marketing its phones for use on a person’s body despite radiofrequency radiation of the phones exceeding federal limits if used in that manner.
But Judge Alsup leaned away from dismissing the case and expressed his bewilderment as to why the Federal Communications Commission would allow testing for cellphone radiofrequency radiation emissions to be done anywhere between 0 millimeters and 25 millimeters away from the body. The judge said he couldn’t believe that the federal agency’s guidelines allowed for such vast variability when it comes to the tests.
"I can’t believe the FCC would be that dumb. That’s a terrible rule," Judge Alsup said Thursday.
But Apple’s counsel argued that the proposed class action, filed in August, is preempted and that plaintiffs must take their issue up with the FCC directly.
The plaintiffs claim Apple fraudulently misrepresents and conceals that consumers who use its iPhones as marketed will be exposed to radiofrequency radiation levels exceeding the federal Specific Absorption Rate limit of 1.6 watts per kilogram and the risks of that exposure.
Plaintiffs say recent independent tests done by FCC-accredited labs have shown that iPhones exceeded federal limits for radiofrequency radiation emissions when used in close proximity to the body and that because the FCC doesn’t regulate Apple’s disclosures to consumers, plaintiffs’ claims are not preempted.
"Apple’s failure to tell consumers that, when used in everyday ways, the smartphones exceed federal safety limits is deceptive," plaintiffs’ co-counsel Elizabeth A. Fegan of Fegan Scott LLP told Law360 on Thursday.
Plaintiffs allege that based on Apple’s misrepresentations, millions of people purchase their smartphones, carry them around all day and use them up against their skin, without being made aware of the health consequences. Plaintiffs initially named Samsung as a defendant but voluntarily dismissed that company from their suit last month.
On Thursday, co-counsel for Apple told Judge Alsup that as recently as December the FCC had retested the phones and found them to be in compliance.
"The very same phones that plaintiff tested, the FCC found in compliance?" Judge Alsup said, clearly perplexed.
"Yes," said Apple’s co-counsel.
"How could it possibly be that two certified labs can come to different results?" Judge Alsup said.
Apple’s co-counsel chalked up the different results to plaintiffs "cherry-picking," saying the plaintiffs are carrying out their own tests, at different proximities from the body.
Allowing the case to move forward, Apple argued, would wreak havoc on a system that has been in place for decades. But Judge Alsup appeared to be unconvinced by Apple’s argument.
"I’m inclined to say let’s find out and have a jury decide," Judge Alsup said.
Judge Alsup said he might even allow for a laboratory to be set up inside his courtroom with independent experts brought in to oversee the tests. Judge Alsup took Apple’s motion to dismiss under submission and scheduled a trial for July 2021. Representatives for Apple did not immediately respond to requests for comment Thursday.
Plaintiffs are represented by Elizabeth A. Fegan of Fegan Scott LLC and Jennie Lee Anderson of Andrus Anderson LLP.
Apple is represented by Jonathan S. Tam, Amisha Rajni Patel and Mark S. Cheffo of Dechert LLP.
The case is Cohen et al. v. Apple Inc. et al., case number 3:19-cv-05322, in the U.S. District Court for the Northern District of California.
–Editing by Orlando Lorenzo.