In Re: MacBook Keyboard Litigation

Background

The plaintiffs brought a proposed class action against Apple, Inc. on behalf of purchasers of MacBook laptops equipped with allegedly defective “butterfly” keyboards. The proposed class covered qualifying purchasers in California, New York, Florida, Illinois, New Jersey, Washington, and Michigan who bought specified MacBook, MacBook Pro, or MacBook Air model years. The plaintiffs alleged that the keyboards’ low-travel design made keys prone to failure when dust or debris entered the area beneath the switch. The alleged symptoms included keys that did not register, registered multiple times, or stuck when pressed.

The plaintiffs sought certification for an implied-warranty claim under California’s Song-Beverly Consumer Warranty Act and claims under consumer-protection statutes in the seven listed states. They also sought appointment of named plaintiffs as class representatives and appointment of Girard Sharp LLP and Chimicles Schwartz Kriner & Donaldson-Smith LLP as co-lead class counsel. Apple had introduced design changes over time and a Keyboard Service Program providing free repairs and replacements for four years. The parties disputed whether those changes affected keyboard problems attributable to the butterfly design.

Expert motions

The court applied Federal Rule of Evidence 702, which governs expert testimony, using a class-certification-focused assessment of whether the opinions were useful and reliable for deciding whether the Rule 23 requirements were met.

The court granted in part and denied in part Apple’s motion to strike the opinions of Hal J. Singer. It granted the motion as to Singer’s hedonic regression analysis because that method assumed that the alleged defect necessarily required use of an external keyboard and that an external keyboard caused a complete loss of laptop mobility. The court found those assumptions inconsistent with testimony that some plaintiffs continued using their laptops, sometimes without external keyboards, and that others retained some mobility while using external keyboards.

The court denied the motion as to Singer’s choice-based conjoint analysis. That survey method estimated the discount consumers would demand for a MacBook with a disclosed keyboard defect. The court found the method relevant and reliable for showing that damages could be calculated on a class-wide basis. It also considered a modified survey that incorporated the probability that the defect would appear and found that the method could be adjusted to fit the plaintiffs’ liability theory.

The court granted Apple’s motion to strike the opinions of David V. Niebuhr for purposes of class certification. Although the court found Niebuhr generally qualified based on his materials-science, mechanical-engineering, and failure-analysis experience, it found his opinions unhelpful at the class-certification stage because he had not conducted separate root-cause analyses and his opinions were duplicative of other evidence. The court stated that the ruling was without prejudice to the plaintiffs offering Niebuhr as an expert witness for other purposes at trial.

The court also stated that it would overrule Apple’s objections to new reply evidence for purposes of considering class certification, without prejudice to renewal. It denied Apple’s request for permission to file a surreply and an additional expert report.

Class certification analysis

Under Federal Rule of Civil Procedure 23, the court examined numerosity, commonality, typicality, and adequacy of representation under Rule 23(a), as well as predominance and superiority under Rule 23(b)(3). The court found numerosity satisfied and concluded that the proposed class presented common questions, including whether the butterfly mechanism was defective and whether Apple knew about the alleged defect.

The court rejected Apple’s arguments that class treatment was improper because many class members had not experienced keyboard problems, the keyboard design changed among models, and plaintiffs experienced different symptoms or potentially different root causes. The court reasoned that the plaintiffs’ theory concerned a defect in the product’s design that allegedly existed at the time of sale, and that differences in whether or how the defect appeared did not defeat commonality. It also found the alleged low-travel and narrow-gap features common across the models at issue and concluded that the relevant questions could be addressed with common evidence.

The court found the named plaintiffs typical of and adequate to represent the proposed class, including purchasers of 2019 models. It also found that Lorenzo Ferguson could adequately represent the New Jersey subclass based on his supplemental declaration explaining that the relevant purchase occurred in New Jersey.

For predominance, the court held that common issues outweighed individual issues concerning manifestation of the defect, design differences, symptoms, root causes, Apple’s knowledge, reliance and materiality, state-law differences, and damages. Regarding damages, the court considered Singer’s choice-based conjoint analysis sufficiently workable and consistent with the plaintiffs’ theory that Apple failed to disclose the existence of the alleged defect and that class members were damaged at the point of sale.

The court also found a class action superior to individual lawsuits because the damages at stake were relatively low compared with litigation costs, no existing litigation concerning the particular controversy was identified, and potential management difficulties could be addressed through subclasses or special verdict forms. The court declined to decide Apple’s argument that the plaintiffs had waived a nationwide class because the plaintiffs were not seeking nationwide certification at that time and the issue was not ripe.

Order

Judge Edward J. Davila granted the plaintiffs’ class-certification motion. The court certified the class for the Song-Beverly and statutory consumer-protection claims and certified seven state subclasses. It appointed the named plaintiffs listed in the order as representatives of the class and subclasses and appointed Girard Sharp LLP and Chimicles Schwartz Kriner & Donaldson-Smith LLP as co-lead class counsel. The court granted Apple’s Niebuhr motion to strike and granted in part and denied in part Apple’s Singer motion to strike. The parties were directed to submit a proposed notice plan within the period specified by the order.