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iPod Antitrust Lawsuit Swaps Plaintiffs Mid-Trial

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By William Peacock, Esq. on December 12, 2014 8:34 AM

This is something you don't see every day. Last week, we told you about the impending Apple antitrust trial over claims that the company used anticompetitive tactics, including DRM-protected songs sold via iTunes, to keep iPod prices high in the mid-2000s.

The trial began as scheduled, but the parties and the court ran into a little problem: The class representative plaintiffs turned out to not be plaintiffs at all -- they were all ineligible. Instead of halting the $1 billion lawsuit (the $351 million figure previously quoted could be tripled under antitrust law), the judge allowed the plaintiffs' lawyers to substitute in a new plaintiff, one that read about the lawsuit on a tech blog.

Problematic Plaintiffs

Eight million consumers and yet, not a single named plaintiff. That's where the iPod class' lawyers found themselves late last week when it turned out that all of their plaintiffs were actually not part of the class at all, recounts Ars Technica.

Last Thursday, it was discovered that one of the named plaintiffs didn't actually purchase her iPod during the relevant period (from 2006 to 2009). The other named plaintiff, Marianna Rosen, didn't purchase her iPod herself -- her ex-husband's law firm purchased it. She was also booted from the case.

Ars Technica Helps Lawyers Find a New Plaintiff

Potential plaintiffs were reaching out to be the class representative even before Ars wrote about it last week, but in the end, the perfect plaintiff was located after she read Ars' coverage of the plaintiff-less lawsuit.

Barbara Bennett, a regular reader of Ars Technica, was brought in by the plaintiffs' attorneys Tuesday. She testified that she is a "compulsive record-keeper" who somehow still has her receipts for two iPods she purchased for personal use back in 2005 and 2006.

Apple planned to depose her in the afternoon to confirm that she was a suitable plaintiff. But U.S. District Court Judge Yvonne Gonzalez-Rogers, who expressed a desire to keep the trial moving, seemed satisfied, reports Ars.

"We're on the right track," she said. "I've got someone here who's made a purchase, with her own funds, has some experience, and, at least from what I can tell, is intelligent and concerned, and doesn't have any relation to the lawyers. She reached out on her own accord."

It's not the usual course of events -- you usually find a proper plaintiff before the trial begins -- but hey, it works.

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