Tango-Loving Ice Dancer Recruited to Save Apple IPod Suit

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With their $1 billion lawsuit against Apple Inc. on thin ice, consumer attorneys found their new lead client -- an amateur skater who holds an eight-year grudge against the iPod maker for making it a hassle to listen to the tango and Hungarian music she loves.

The other thing Barbara Ragan Bennett, 65, brings to the case is her iPod Nano bought in 2006. That’s the most important credential to serve as lead plaintiff on behalf of 8 million consumers in a case alleging that Apple tried to maintain a monopoly on digital music from 2006 to 2009.

The two previous lead plaintiffs were taken off the case after Apple questioned whether their iPod purchases qualified them to be representatives in the class-action case. Their removal, with the trial under way in federal court in Oakland, California, threatened to derail the case for Robbins Geller Rudman & Dowd LLP, the San Diego-based law firm representing consumers.

U.S. District Judge Yvonne Gonzalez Rogers held off approving Bennett yesterday as the new named plaintiff, saying she wanted to first hear Apple’s opinion of the woman’s suitability. Bill Isaacson, Apple’s attorney, said today his team didn’t discover anything while questioning Bennett that would invalidate her, apart from her late entry in the case, as lead plaintiff.

On the stand with the jury absent, Bennett described herself yesterday as a consultant and ice dancer from Marshfield, Massachusetts. She said she e-mailed the judge to volunteer herself as class representative for the case after reading that the lead plaintiffs had been withdrawn.

Rare Music

She said that after buying her Nano in 2006, she couldn’t always find the “rare music” she enjoys, including tango and Hungarian, for sale on iTunes. As a result, she had to buy CDs of the music and copy it onto her laptop before syncing with her Nano, she said.

“It was very cumbersome,” she said. “It cost me money and limited access to music for me.”

Bennett’s difficulties are at the heart of the lawsuit alleging that Apple, facing its first competition in digital music a decade ago, changed its technology so that songs it sold worked only on an iPod.

The jury in the case will decide as early as next week whether Apple violated antitrust laws by preventing songs sold by rival digital music providers from being played on the iPod.

Apple says the modifications benefited customers by providing added features and protection from hackers. The consumer attorneys claim the changes were designed to lock iPod users into iTunes so Apple could charge more for the devices.

Apple’s Doubts

The case, filed in 2005, took nine years to get to trial. Last week, with the jury already hearing testimony, Apple lawyers told Rogers they doubted whether the lead plaintiffs, whose claims are meant to represent what happened to other iPod customers, owned devices that met the criteria for the case.

The judge concluded the issue was serious enough that she invited Apple to argue for dismissal of the case.

The consumer lawyers voluntarily withdrew one of the plaintiffs.

Rogers disqualified the other plaintiff after Apple revealed that the iPods she claimed to have bought were either not covered by the lawsuit or had been purchased with the credit card of her then-husband’s law firm.

Overriding Apple’s objection that bringing in new lead plaintiffs during the trial was unfair, Rogers allowed the consumer lawyers to find other iPod owners.

The first one proposed was Bennett, who e-mailed the judge over the weekend. Consumer attorney Patrick Coughlin asked the judge to suspend the trial for a few days to give plaintiffs time to vet other potential class representatives. The judge refused, ordering Coughlin to move forward with the lead plaintiffs who were ready.

“Reality is: I only need one,” she said.

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

(Updates with Apple lawyer in fourth paragraph.)
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