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After veering toward dismissal with eliminations of the two named plaintiffs, an iPod-iTunes antitrust lawsuit gained new life of Tuesday as a new plaintiff emerged to represent a class of 8 million iPod buyers.
A 65-year-old ice dancer named Barbara Bennett appeared in the U.S. District Court for the Northern District of California, where she was examined by presiding Judge Yvonne Gonzalez Rogers and lawyers for the plaintiffs and Apple.
Bennett was questioned to evaluate potential for eligibility in the class-action lawsuit. According to the publication, Bennett told the story of how she used her iPods while practicing ice skating moves. Importantly, the iPod nano she purchased in 2006, making her an eligible class member.
"We're on the right track," Judge Gonzalez Rogers said to attorneys.
On Monday, the class lost its last remaining plaintiff when Judge Gonzalez Rogers eliminated Marianna Rosen from the suit. An original named plaintiff, the validity of Rosen's claims came into question after Apple attorneys found discrepancies in her testimony, not the least of which being an apparent lack of evidence confirming that she purchased an iPod in the case's eligible time period between Sept. 12, 2006 and March 31, 2009.
Rosen initially said bought an iPod nano in 2007 and an iPod touch in 2008, but did not have paper receipts for either device. She offered up an iPod touch in court for inspection, though a serial number lookup revealed that device to have been purchased in July 2009.
She later amended her testimony to include iPods bought in September 2008, but Apple lawyers found Rosen had paid using a credit card issued to the Rosen Law Firm, a family business.
Another plaintiff, Melanie Tucker, withdrew from the case last week after her iPod buys were also found not to fall within the prescribed time period.
Judge Gonzalez Rogers on Tuesday suggested pausing the trial so Apple would have time to investigate the new class representatives, but lawyers declined. The jurist said she didn't want to "lose time" on the suit.
In a comment to Apple attorney William Isaacson, however, Judge Gonzalez Rogers alluded to more trouble with the class.
"You now have an appealable issue," she said.
The class is seeking $350 million in damages from Apple for allegedly using FairPlay digital rights management to create a monopoly with the iPod and iTunes Music Store. Under U.S. antitrust laws, damages could be tripled to over $1 billion if Apple is found culpable of wrongdoing.