During recent court proceedings in the iTunes antitrust lawsuit, new evidence presented by Apple revealed that the caseís sole remaining plaintiff didnít purchase iPods eligible for action. Elaborating on earlier findings regarding plaintiff Marianna Rosen, Apple notified the presiding judge that the device purses were made using a credit card assigned to the Rosen Law Firm. Judge Gonzales Rogers was at that point set to rule on an Apple motion to dismiss the case but held off in light of the new findings. That being said, Appleís lawyers donít seem to be aggressively seeking a dismissal.

Apple attorney William Isaacson had the following to say regarding the matter:

We want to win this case on the merit, and we think we're going to. So we have not pushed to have this decided.
For those of you who didnít know, plaintiff Melanie Tucker withdrew after it was discovered that her iPod purchases also didnít fall within the eligible time span set between September 12, 2006 to march 31, 2009. Proceedings left off with Rosenís purchase that is still in question though Apple noted the iPod touch she claimed to have purchased in 2008 was actually from September 2009. In a previous testimony, Rosen claimed that she bought an iPod nano in 2007 and an iPod touch in 2008 but failed to keep the receipts necessary that prove her purchase dates. She ended up offering the device for inspection in court where Apple lawyers were able to trace the purchase back to July 2009.

After the discovery, Bonny Sweeny, the attorney for the plaintiffs presented the paper receipts for iPods purchased in September 2008 within the caseís prescribed time period but after Apple cross-checked with their records, it was found that the iPods were brought by the Rosen law firm, which is a family business owned by Rosenís husband. To claim injury, plaintiffs need to prove they purchased the iPods directly not through a family business.

Over the weekend, Rosen amended her claims, stating that she bought both an iPod touch and an iPod nano on September 11, 2008 with a credit card issued to the Rosen Law Firm, authorized for personal use. The second iPod touch is a separate device from the one produced in court and subsequently found to be out of scope too. Rosen no longer holds the credit card but claims that it was issued under both her name and the firmís where she previously worked. Sweeney ended up maintaining her standing in the case stating that even if Rosen was found ineligible, the next move would be to just find another plaintiff who did fit the criteria as opposed to dismissing the case.

Ultimately, Judge Gonzales Rogers denied Appleís motion to dismiss citing the responsibility to the 8 million iPod owners who were potentially affected by Appleís alleged monopoly. The jurist will hold a new session regarding the new plaintiff selection today. Weíll have to wait and see how the case proceeds.

Source: The New York Times via AppleInsider