Cohen v. Apple Inc.
| Decision Date | 29 October 2020 |
| Docket Number | No. C 19-05322 WHA,C 19-05322 WHA |
| Citation | 497 F.Supp.3d 769 |
| Court | U.S. District Court — Northern District of California |
| Parties | Andrew COHEN, Timothy Hornick, Kaleah C. Allen, Kimberly Benjamin, Mark Weiler, Matt Koppin, Scott Cischke, Albert Collins, Paul Coletti, Krystle Faern, Rodolfo Cabrera, Brandy Davis, William Zide, David Hedicker, Nancy Maekawa, Catherine Goodwin, Kathleen Boggs, Kimberly Modesitt, Mark Kunze, Ariana Ryan, Becky Wellington, M. Gail Sundell, Victor Perlman, and Zachary Gomolekoff, individually and on behalf of all other similarly situated, Plaintiffs, v. APPLE INC., Defendant. |
Elizabeth A. Fegan, Pro Hac Vice, Fegan Scott LLC, Chicago, IL, Jennie Lee Anderson, Andrus Anderson LLP, San Francisco, CA, Jessica H. Meeder, Fegan Scott LLC, Washington, DC, Lynn Ellenberger, Pro Hac Vice, Fegan Scott LLC, Pittsburgh, PA, for Plaintiffs Andrew Cohen, Kaleah C. Allen, Kimberly Benjamin, Timothy Hornick, Nicholas Carlson, Mark Weiler, Chad Smith, Sarah D. Smith, Scott Cischke, Matt Koppin, Albert Collins.
Lynn Ellenberger, Pro Hac Vice, Fegan Scott LLC, Pittsburgh, PA, Elizabeth A. Fegan, Fegan Scott LLC, Chicago, IL, for Plaintiffs Rodolfo Cabrera, Zachary Gomolekoff, Becky Wellington, William Zide, Kathleen Boggs, Glenn Jacobs, Krystle Faeryn, Nathan Cooper, Nancy Maekawa, Ariana Ryan, M. Gail Sundell, Catherine Goodwin, Paul Coletti, June A. Hall, David Hedicker, Kimberly Modesitt, Victor Perlman, Mark Kunze, Brandy Davis.
Jonathan S. Tam, Dechert, LLP, San Francisco, CA, Amisha Rajni Patel, Pro Hac Vice, Christina Guerola Sarchio, Pro Hac Vice, Dechert LLP, Washington, DC, Mark S. Cheffo, Pro Hac Vice, Dechert LLP, New York, NY, for Defendant.
ORDER ON MOTION FOR SUMMARY JUDGMENT
In this putative class action, this order holds that the FCC's radio frequency radiation exposure regulations preempt plaintiffs’ tort and consumer-fraud claims.
At all material times, defendant Apple, Inc., manufactured and sold a series of industry-defining smartphones known as the iPhone: a cellphone with a broad range of additional functions based on advanced computing capability, large storage capacity, and internet connectivity. Like other forms of wireless communication, these smartphones relied on radiofrequency electromagnetic waves (RF radiation) to send and receive signals. The oscillation of electrical charges in the phone antennas would generate RF radiation emanating from those antennas. The closer to the body the phone remained while in use, the more RF radiation a user would get.
For at least the last forty years, scientists have weighed in on the health risks associated with RF radiation exposure from radio transmitters. Unlike ionizing radiation (such as X-rays), which is always potentially harmful to human tissue, non-ionizing radiation, such as phones emit, is incapable of breaking the chemical bonds so as to damage DNA. High levels of RF radiation, however, can cause adverse thermal effects, like a burn. More controverted is the purported existence of non-thermal effects caused by lower levels of RF radiation. Such effects, if they exist, may include an increased risk of cancer, cellular stress, structural and functional changes to the reproductive system, learning and memory deficits, genetic damage, and neurological disorders.
Based on its review of the science, the Federal Communications Commission has promulgated RF exposure standards that all cellphones must comply with before being sold in the United States. Guidelines for Evaluating the Environmental Effects of Radiofrequency Radiation , 11 F.C.C.R. 15123 ¶ 171 (1996) ( 1996 RF Order ). Plaintiffs, purchasers of nine different iPhone models, seek to hold Apple to account for selling iPhones that allegedly do not comply with the Commission's RF emissions standards.
Plaintiffs filed this action in September 2019, seeking to represent "[a]ll persons who have owned or leased an iPhone for personal or household use in the United States." A few weeks later, plaintiffs’ counsel filed a nearly identical complaint, also in our district, on behalf of different named plaintiffs. Prior orders related and consolidated the two actions. Following an initial case management conference, plaintiffs filed their consolidated amended class action complaint, now our operative complaint (Dkt. Nos. 47, 51, 53).
The operative complaint alleged seven disclosure-related claims and one negligence claim for medical monitoring. Plaintiffs based the latter on an allegedly increased risk of harm they may face due to their use of iPhones as advertised. The disclosure-related claims alleged that Apple marketed its phones for use on or in close proximity to the body, but failed to disclose that such use would allegedly expose consumers to RF radiation levels above the federal standards, and failed to disclose the alleged risk attendant to such exposure.1
Apple sought dismissal under a litany of theories, including preemption, lack of standing, and various pleading deficiencies. Following a hearing, an order found that matters outside the pleadings had been presented in Apple's briefs without sufficient justification. Apple's motion became one for summary judgment under Rule 56 and discovery opened immediately (Dkt. Nos. 62, 75, 89).
Given the necessary application of FCC regulations and guidance, and particularly the extent to which its regulations could preempt plaintiffs’ claims, the Court invited the Commission to participate as an amicus curiae. The Commission accepted, filing a statement of interest addressing the application of its regulations and guidance to plaintiffs’ claims.
After some discovery ensued, Apple moved again for summary judgment on the dispositive issues of preemption and jurisdiction.
Following a hearing, the undersigned judge ordered Apple to produce all communications between Apple and the FCC prior to and related to any certification involved in this action and all communications regarding the Chicago Tribune story. Plaintiffs were allowed a supplemental brief to explain the significance of the produced communications to the pending motion, and Apple an opportunity to respond. Promptly, Apple filed an emergency motion for clarification and an extension of time to produce the communications. A prior order granted the motion, and extended the briefing deadlines as well.
Now, plaintiffs all but abandon any reliance on what communications Apple did produce and instead rehash arguments made in their briefs. The single document plaintiffs found relevant demonstrated, in that instance, that Apple, not the FCC, bore responsibility for its disclosures to consumers in their user manuals.
This order follows full briefing, a telephonic hearing (due to the ongoing public health emergency), and supplemental briefing.
Plaintiffs seek to hold Apple liable for selling iPhones that allegedly exceeded the Commission's RF radiation exposure limits, making the phones unsafe. All agree, however, that the Commission certified each and every iPhone model as compliant with its RF regulations. And, the Commission has determined that all certified cellphones pose no health risks. Plaintiffs nevertheless insist that a jury should decide whether the iPhones exceed the federal RF exposure standards here, not the administrative agency tasked with developing and administering the safety program. Under ordinary conflict preemption principles, a state law that "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of a federal law is pre-empted. Hines v. Davidowitz , 312 U.S. 52, 67, 61 S.Ct. 399, 85 L.Ed. 581 (1941). The basic question, then, is whether plaintiffs’ tort and consumer-fraud claims that would have juries administer the Commission's regulations would stand as an obstacle to the regulations’ own objectives. This order answers yes, and holds that the claims must be deemed preempted.
Before reaching the preemption determination, however, three threshold issues regarding the statutory basis for the RF regulations must be addressed, following a review of the statutory and regulatory background.
47 U.S.C. § 151. To achieve its broad objectives, Congress endowed the Commission "with comprehensive powers to promote and realize the vast potentialities of radio." Nat'l Broad. Co. v. FCC , 319 U.S. 190, 217, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). One such power included the authority "to regulate ‘the kind of apparatus to be used’ for wireless radio communications and ‘the emissions’ that such equipment may produce" (Dkt. No. 101-1, FCC Statement at 3, quoting 47 U.S.C. § 303(e) ).2
The Commission has played a central role in the development of cellular radio technology since its inception, establishing the basic regulatory structure for the cellular mobile radio service in 1981. Cellular Communications Systems , 86 F.C.C.2d 469, 470 (1981). At the service's regulatory core is the Commission's sole jurisdiction over radio licensing pursuant to Section 301 of the 1934 Act. On the equipment side, the rules required compliance with minimum technical standards to ensure efficient and effective use of the radio spectrum licensed for cellular service. The regulations and...
To continue reading
Request your trial