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When AMC announced that the fifth season of the series would be the final one, Apple began selling an iTunes “season pass” for $21.99 for high definition and $13.99 for standard definition. Customers were promised that the season pass “includes all current and future episodes of Breaking Bad, Season 5.”
However, AMC elected to broadcast the first half of the fifth season in 2012 and the second half of the fifth season in 2013. Apple followed suit, charging customers who had purchased the first half an additional $22.99 for the “final” final season. After some public backlash, Apple apologized for any confusion and began refunding customers who had purchased the second season pass. Still, that didn’t do much for customers like Lazebnik, who had bought the first eight episodes with the expectation of getting 16, but hadn’t purchased two season passes. These folks were told they weren’t getting the last eight episodes for free.
In chemistry, atoms and molecules form chemical compounds. The law operates similarly. Facts support legal claims. Sometimes, plaintiffs bring good facts and win. Other times, they bring bad facts and lose. Then, there are the cases like Lazebnik’s lawsuit that bring messy facts to the courtroom.
The biggest messy fact is that Lazebnik himself didn’t actually complete the transaction on iTunes. His son-in-law, Jeremy Tor, did, using Lazebnik’s credit card on Lazebnik’s behalf.
And so, U.S. District Judge Edward Davila must first concern himself with Apple’s argument that the good doctor lacked standing to pursue his lawsuit because it was Tor, not Lazebnik, who had read and relied upon Apple’s promise. In response, the plaintiff said that Tor related the promise to his father-in-law. The judge writes that it is reasonable to infer that Lazebnik then gave permission to make the purchase.
As for whether Lazebnik was “exposed” to Apple’s statement about the final season, the judge says “this appears to be a question of fact not suitable for adjudication at this stage in the litigation. A jury could reasonably find that Defendant had reason to expect that its representations would be transmitted to others, particularly in the case of statements made to a wide audience such as iTunes users.”
Still, even if the dispute makes it to trial, Lazebnik won’t get to bring all his claims because of the existence of some bad facts. First, the plaintiff can’t point to any evidence of offer, acceptance or consideration that would support his theory that a contract had been breached. And second, the plaintiff’s claim of a violation of the California Consumers Legal Remedy Act fails because the judge refuses to interpret streaming video content to be a “good” under the meaning of the statute.
Nevertheless, the lawsuit survives on Lazebnik’s false advertising claim under California’s Unfair Competition Law.
Apple contended that it never made any explicit promises that Season Five purchasers would be entitled to “all 16 episodes,” but this argument isn’t enough to kill the lawsuit at this stage. “The facts of the instant case do not amount to the rare situation in which it is appropriate to find the challenged practice, as a matter of law, unlikely to deceive a reasonable consumer,” writes the judge.
Apple also struck out in its finger-wagging at AMC for allegedly bearing responsibility for causing Lazebnik’s injury. “The test is whether Defendant’s representations were likely to deceive a reasonable consumer,” says the judge. “Whether the likelihood of deception arose because of AMC’s conduct or Defendant’s conduct is not relevant to this inquiry.”
That doesn’t mean a trial will actually take place. There are still various steps to go through, including the certification of a class. And given the legal costs of actually taking this to trial, the dispute probably is a good candidate for settlement at some point. The amount of money or iTunes store credits that Apple would hand over could depend on the composition of plaintiffs and viable claims. Thus, it’s not surprising to see the parties testing out the atoms and molecules of the lawsuit at the pre-trial phase.
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