Apple IPod Judge Asks If Lack of Plaintiff Dooms Trial

Apple Inc. said it discovered that the lead consumer in a $1 billion group antitrust lawsuit over the iPod didn’t buy a device in the time period covered by the case, which could derail a trial now under way.

Bill Isaacson, Apple’s attorney, told U.S. District Judge Yvonne Gonzalez Rogers that plaintiff Marianna Rosen’s iPod was purchased in July 2009, three months after a deadline for iPod owners to be included in the case. The case, filed in 2005, is over claims that Apple sought to thwart rival music stores to maintain a monopoly over digital players.

“I am concerned that I don’t have a plaintiff,” Rogers said in court today while the jury was on a break in the third day of trial in Oakland, California. “That’s a problem.”

She told Isaacson to file arguments about whether and how the trial should proceed given the developments about Rosen.

Apple said it couldn’t verify purchases of other iPods Rosen said she bought and has asked her lawyers for information about them.

Bonny Sweeney, Rosen’s attorney, told Rogers she hadn’t yet reviewed Apple’s claims. The only other named plaintiff in the case didn’t purchase an iPod during the period covered by the lawsuit, she said.

Named plaintiffs in class-action lawsuits represent the interests of people with similar circumstances.

A named plaintiff in a class action has to be an individual who was injured by the conduct being challenged in the lawsuit, said Vikram Amar, a law professor at University of California at Davis. Another person could take Rosen’s place as a named plaintiff under procedures approved by Rogers, he said.

The case is The Apple iPod iTunes Antitrust Litigation, 05-cv-00037, U.S. District Court, Northern District of California (Oakland).

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