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Apple, AT&T Sued Again Over iPhone 3G Issues

A New York iPhone 3G user has filed a class action suit against Apple and AT&T Wireless, claiming the device does not deliver promised network capabilities and the smartphone's casing is prone to hairline cracks.

The suit, filed September 29 in Supreme Court of the State of New York, County of Nassau, by Avi Koschitzki, initially alleged that Apple and AT&T misrepresented network performance speed.

Koschitzki's lawyers amended the complaint on November 12 to include the casing defect claim. The plaintiffs seek statutory, compensatory and punitive damages and want a jury trial.

"Due to the overloaded 3G network, it is quite common for iPhone users to only be on the 3G network for a few minutes before being bumped to the slower EDGE network, despite being in geographic areas allegedly rich with 3G network coverage," states the complaint.

An AT&T Wireless spokesperson told InternetNews.com the carrier had no comment on the New York legal action.

In regard to the hairline crack issue, the lawsuit claims Apple was aware of the issue due to Internet postings about the problem, including a thread on Apple's discussion Web site.

"There have been postings by customers on the Internet who have aired their grievances through Apple's own discussion groups and instead of receiving a response concerning the hairline cracks from Apple, Apple allegedly removed the discussion thread from its Web site," states the complaint.

The New York legal action comes three months after two Alabama residents filed a similar suit. AT&T and Apple have until Monday, November 24 to respond to the legal action.

Two strikes in Alabama

InternetNews.com learned today that a judge has dismissed two of three claims made in the Alabama suit. The court ruled that two iPhone 3G owners can move forward to seek compensation for what they claim are faulty devices.

In his ruling on November 4, United States District Judge William Acker states that the plaintiffs, Alabama residents Wilton Lee Trigg II and Jessica Smith, did not follow Apple's (NASDAQ: AAPL) warranty procedure, which would have given Apple an opportunity to replace the devices.

"Had Apple received notice from plaintiffs that the particular iPhones bought by them were defective, Apple could have taken a direct route toward fixing the alleged defects or could have reached a settlement with plaintiffs at a time before litigation expenses were incurred," the decision states. "Plaintiffs did not afford Apple statutorily guaranteed opportunities," according to the judge's ruling.

Smith and Trigg filed the suit August 19 shortly after purchasing the iPhone 3G device last summer.

The suit states the plaintiffs have suffered "significant monetary and non-monetary damages" due to the "defective" devices which allegedly do not provide promised data speeds and voice call connectivity promised in advertising. The complaint alleged breach of express warranty, breach of the implied warranty of merchantability and unjust enrichment.

The suit also requests class certification and was filed on behalf of the thousands who have purchased the new iPhone.

In a response filed yesterday Apple stated the class action request is not "appropriate," and repeatedly stipulates that the iPhone 3G is not a defective device.

"Apple denies that the plaintiffs or members of the purported class have been damaged or are entitled to any relief of any kind," according to the documents.

Calls to the Trimmier Law Firm, representing Trigg and Smith, and to Apple's media relations team on the court action were not returned by press time.

In upholding an allegation of unjust enrichment, the court is allowing the parties to move forward for monetary compensation. Unjust enrichment is a situation in which one party benefits at the expense of another, either through monetary payment or services.

In the suit, Smith and Trigg state that just 25 percent of voice calls could be completed using the phone, and they experienced an "inordinate" amount of dropped calls as well as "slower than advertised" Internet connectivity, e-mail and text messaging services.

"Defendant [Apple] claims the device is twice as fast as its predecessor," and made "numerous express warranties about he quality and compatibility of the 3G protocol" included in the phone," states the legal document.