No Class Certification in Apple Text Intercept Suit

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Aug. 17 — A group of former Apple Inc. mobile device users Aug. 13 failed to get class certification in a lawsuit alleging that the company intentionally intercepted text messages sent from current Apple device users to former Apple device users.

Judge Lucy H. Koh of the U.S. District Court for the Northern District of California held that the plaintiffs lacked standing under California's Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 (UCL), and that the proposed class was unascertainable.

The court, however, concluded that Apple's alleged violation of the federal Wiretap Act is “sufficient” to satisfy Article III's injury-in-fact requirement for standing.

In doing so, the court noted that it is aware that the U.S. Supreme Court has granted certiorari in Spokeo, Inc. v. Robins, 135 S. Ct. 1892 (2015), and that the Supreme Court may address whether the actual injury requirement can be satisfied solely by a defendant's alleged violation of a statutory legal right.

iMessage Service

In 2011, Apple released a proprietary messaging service called “iMessage,” which is an alternative to other forms of messaging, including Short Message Service and Multimedia Messaging Service (SMS and MMS).

Consumers filed a putative class action against Apple, claiming that if a current Apple device user sends a text message to a former Apple device user, the company intercepts the message, “insuring its nondelivery.” The plaintiffs alleged that Apple's practices violated the federal Wiretap Act, 18 U.S.C. § 2510; the UCL; and the Stored Communications Act, 18 U.S.C. § 2701.

In November 2014, the court dismissed the bulk of the plaintiffs' claims but allowed the Wiretap Act claim and some of the UCL claims to move forward. 

In May, the plaintiffs moved to certify a nationwide class of former iPhone and iMessage users who switched to a non-Apple device and whose text messages from current Apple device users were intercepted and not received. Apple opposed, arguing that the plaintiffs failed to satisfy the requirements for Article III standing and UCL standing.

Proposed Class Definition Is Unascertainable

Although the plaintiffs have satisfied Article III standing, they failed to show that they lost “any money or property” as required to have standing to assert UCL claims, the court said.

It also held that the proposed class definition is unascertainable because “it would require individualized factual determinations merely to determine whether an individual falls within the proposed class.” Under the proposed class definition, a class member would have to know that the third party was using iMessage, that the third party attempted to send the proposed class member a text message that the class member didn't receive and that the undelivered text message was intercepted.

The plaintiffs have failed to show that the proposed class members will be “capable of reliable self-identification,” the court concluded, “or that it would be administratively feasible” for the court to determine class membership.

Audet & Partners LLP represented the plaintiffs. Morrison & Foerster LLP represented Apple.

Full text of the court's opinion is available at