iPod nano owners sue Apple over screen issues

The complaint, filed in the U.S. District Court in the Northern District of California in San Jose on Wednesday, will bring before the courts the same complaints recently voiced by nano adopters on websites and online message boards.

According to the Red Herring, the lawsuit was filed on behalf of nano owner Jason Tomczak and others who have purchased the relatively new device. The lawsuit alleges Tomczak rubbed a paper towel on the face of his nano and “that alone left significant scratches.”

In the suit, lawyers for the plaintiffs charge that screens on the nano “scratch excessively during normal usage, rendering the screen on the Nanos unreadable, and violating state consumer protection statutes [...] and causing Plaintiff class members to incur loss of use and monetary damages.”

The suit goes on to allege that the player's screen "scratches so excessively that the items shown on the screen can no longer be viewed by the user. In fact, if users were to put their nanos in their pockets with common items such as coins, keys, a money clip, a credit card, or even the earphones that accompany the nano, the devices would likely scratch so badly that viewing the screens would be extremely difficult, if not impossible."

Tomczak and class action members are being represented by law firms Hagens Berman Sobol Shapiro and David P. Meyer & Associates.

The lawsuit follows an abundance of nano complaints around the Web, media reports about its increased susceptibility to scratches, and Apple's own acknowledgment of an LCD flaw with a small number of the players.

Last month, scratching issues related to the nano spurred a flurry of first-hand reports from disgruntled customers and also fueled the creation of websites like www.flawedmusicplayer.com, which urged Apple recall the product.

Apple responded by acknowledging a "vendor quality problem in a small number of units" that could cause the nano's LCD screen to fail or crack, but downplayed concerns that the screen was more prone to scratches than previous iPod models.

"A few vocal customers are saying that their iPod nano is more susceptible to scratching than prior iPods. We have received very few calls from customers reporting this problem, and do not believe this is a widespread issue," the company said.

Apple added: "The iPod nano is made with the same high-quality polycarbonate plastic as the fourth-generation iPod. We suggest concerned customers use one of the iPod nano cases that are coming to market to protect the music player."

In the 31-page suit obtained by AppleInsider, Tomczak and his lawyers oppose Apple's response, arguing: "Although it was clear that the nano was defective, with the fierce competition in the digital music industry, Apple decided not to delay the release of the Nano, but to pass off the cost of replacing the defective product along to class members."

"Moreover," the plaintiffs said, "rather than admit the design flaw when consumers began to express widespread complaints about the screen's propensity to scratch easily and excessively, Apple concealed the defect and advised class members that they would need to purchase additional equipment to prevent the screen from scratching excessively."

The plaintiffs are asking for a trial by jury. They seek damages including reimbursement for the cost of the nanos, statutory and punitive damages, and attorneys' fees. They are also asking for a share of the "unlawful or illegal profits" Apple has made from sales of the players.

Apple introduced the iPod nano on September 6th and has since sold over 1 million of the players. However, recent analysis suggest Apple is gearing up to sell as many as 10 million nanos in the three-month period ending December 31st.