Unfair Competition – Joseph Birdsong v. Apple, Inc., 2009 DJDAR 18087 (December 30, 2009)

Plaintiff bought two of the defendant’s devices which came with headphones that produced sounds as loud as 115 decibels.  The defendant included a warning that with each device regarding permanent hearing loss occurrence if the headphones were used at a high volume.  Plaintiff filed an action against the defendant claiming that a defect existed in the device because the product posed an unreasonable risk of hearing loss to its users.  The U.S. District Court dismissed the claims for various reasons, among them that they lack standing to assert a claim under California’s Unfair Competition Law (UCL).

The U.S. Court of Appeals – 9th Circuit affirmed.  To have standing under the UCL, plaintiff must established that it has suffered an injury in fact and lost money or property as a result of the Unfair Competition.  Here, the plaintiff did not claim that it suffered or imminently would suffer hearing loss from use of  the device.  At most, plaintiff alleged that some devices have the capability of producing unsafe volumes of sound and that consumers may listen to these unsafe sound levels.  This court found that this allegation was insufficient to satisfy the injury element under the UCL.  Further this court found no merit in a hypothetical allegation of economic harm should the plaintiff argue that the risk of hearing loss reduce the value of its device.  Thus, the district court did not err in dismissing the plaintiff’s complaint.

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