Lawsuits against Apple over possible exaggerations regarding the water resistance of iPhones are nothing new. It is often alleged that the company has incurred in misleading , insofar as the guarantee of the devices does not cover liquid damage, despite disclosing the resistance, as did the owner of an iPhone 12 Pro at the end of last year.
We now have a collective civil action (Proceeding No. 0871552-97.2020.8.14.0301 – Court of Justice of Pará) against Maçã, filed by the Brazilian Association for Education, Culture, Protection and Defense of Consumers, Taxpayers and the Environment (ADECAMBRASIL).
The basis of the action is that, although the company discloses that the iPhone 11 line is water resistant, many devices are damaged after minimal exposure to liquids and the warranty, as we know, does not cover this damage. Countless people would have claimed that their devices suffered damage after the slightest contact with liquids, demonstrating the collective nature of the cause.
The group then claimed compensation of more than BRL 100 million by Apple due to misleading , as well as material and moral damages (these amounting to R$5 mil to injured consumers), in addition to a request in urgent relief for the withdrawal of regarding the water resistance of the iPhones 11.
Maçã, in turn, claimed that ADECAM was showing an opportunistic attitude, in addition to not having the legitimacy to represent all the allegedly injured consumers, not having even attached a list of associates to the file. It also rejected accusations of fractional or incomplete , stating that water resistance cannot be confused with the device being waterproof.
The lawyers constituted by Maçã also recalled that the iPhones 11 [Pro e Pro Max] are in accordance with the NBR IEC 60529:2017 standard, which regulates water and dust resistance certifications. They also said that the information disclosed by the company is clear, in addition to what the association calls would not configure such type of communication, as well as saying that there was no proof of material damage and that the legal doctrine (authors in the area) rejects the idea of collective moral damage.
Judge’s long sentence Roberto Cezar Oliveira Monteiro, of the 7th Civil and Business Court of Belém do Pará, partially won the association. He understood, initially, even using jurisprudential sources (previous processes; in this case, the Superior Court of Justice), that there would be no need for ADECAM to present who its representatives are, as rights that belong to the community are being defended. He also questioned the idea that it was an opportunistic cause, given that the association was founded in 1993.
Then, the magistrate exposed his understanding that Apple, yes, practiced misleading , under the terms of article 37 of the Consumer Protection Code. For him, the company’s propaganda regarding the water resistance of the iPhones 11 was misleading, conflicting, fractional and incompleteomitting details about the certification and without explaining them satisfactorily, in addition to implying that “the water-resistant device means its full exposure to liquids”, within the limits of 30 minutes and 4 meters deep.
Accordingly, Apple was ordered to pay damages of BRL 5 million in collective moral damage, due to the violation of transindividual rights — collective, diffuse, individual and indivisible. The company’s argument that moral damage is only indemnifiable when individual was not accepted, on the grounds that collective damage represents a violation of society as a whole and of the legal system. The amount should be allocated to the National Fund for the Defense of Diffuse Rights.
In addition, there was a conviction to pay individual moral damages to buyers of iPhones 11/11 Pro/Pro Max in the amount of R$1.500. Each consumer must be sought out on a case-by-case basis and prove both that they have suffered damage from misleading and that they are part of the affected community — which is who “won” the process.
The payment of material damages requested by the association was not accepted by the judge due to the lack of evidence that consumers were individually affected. The magistrate also denied the urgent injunction to withdraw about water resistance and the publication of a note in major newspapers about the loss of warranty due to damage caused by liquids. The justification was that the devices have already been discontinued, as well as that the publication of the sentence already gives enough publicity to the decision.
The most curious thing about this case is that, in addition to being condemned to pay the attorney’s fees for the loss of suit, Apple was also convicted of bad-faith litigation and an act that violated the dignity of justice. The reason was that the law firm that represented the company had sent an intern to the conciliation hearing, after designation by a company employee who did not have powers to do so.
Apple will still be able to appeal the second instance of the judge’s decision, which belongs to the first degree of justice.
It is worth remembering that, in the United States, another class action also motivated by misleading in relation to water has already been discarded because individual property damage has not been proven, in addition to the allegations regarding the fact that Apple had exaggerated the about water resistance.
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tip from Caio Santos