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Apple Wins Initial Breach of Contract Victory in Suit by iTunes Users


Posted on Jan 01, 2016

In late April, U.S. District Court Judge Lucy Koh ruled that a New York resident did not allege sufficient facts to show that Apple committed a breach of contract by allegedly double billing him. The lawsuit was dismissed without prejudice. It remains to be seen whether the plaintiff will try to bring the action again with additional facts to support the claim.

The resident, Robert Herskowitz, alleged in his lawsuit that Apple had charged him $2.58 for downloading the song “Whataya Want From Me.” He had expected to pay half that price—$1.29. Since Apple has a no-refund policy, the company refused to issue a refund. Mr. Herskowitz filed a lawsuit against the company that was later consolidated into one potential class action. The suit was combined with a separate complaint filed by Pennsylvanian resident Phoebe Juel. Ms. Juel’s case alleged that she had been forced to download the same track twice because she was unable to find the music file after downloading it the first time. Both Juel and Herskowitz assert that Apple violated its terms of service by billing customers twice for the same song.

In its defense, Apple argued that its iTunes agreement specifies that downloaded songs cannot be replaced. The company asserts that the terms of the agreement further call for customers to contact the company if there are technical problems that prevent songs from downloading. Apple claims that Herskowitz was not charged more than once; rather, he downloaded the same song twice. The company states that under the terms of the service agreement, both he and Juel should have contacted technical support rather than initiate a second download of their respective songs.

Judge Koh sided with Apple. In her written decision, she stated that the plaintiffs failed to allege the type of facts that would prove Apple had violated its terms of service. Downloading the same some twice does not amount to a breach of contract because the express language of the agreement only allowed them to download a song once. The plaintiffs have until May 17th to amend their complaints.

To learn more about breach of contract and other business litigation matters, contact a New York breach of contract attorney today at (888) 497-3410.

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