Robert Herskowitz has filed a federal class action lawsuit seeking an injunction and punitive damages for breach of contract, breach of faith, unjust enrichment, unfair competition and business law violations.
In his lawsuit, Herskowitz claims he bought a single song from the iTunes store for $1.29, for which Apple charged him twice. According to the lawsuit, when he brought the error to Apple's attention, he says, the company responded: "Your request for 'Whatya Want from Me' was carefully considered; however, according to the iTunes Store Terms of Sale, all purchases made on the iTunes store are ineligible for refund. This policy matches Apple's refund policies and provides protection for copyrighted materials."
Herskowitz says the agreement governing use of Apples' e-Stores "says no such thing." He claims the policy has "resulted in substantial numbers of Apple customers throughout the country having been double billed by Apple." Instead, the lawsuit claims that Apple's refund policy, in the Terms and Conditions to which every customer must agree to make purchases on Apple's e-stores, states that Apple does not provide refunds in the event of a price reduction or promotional offering. Accordingly, by its own terms, "Apple's 'no refund' policy is limited to 'the event of a price reduction or promotional offering.'"
The complaint adds: "Under the agreement, as with any consumer transaction, Apple may bill customers only once for each product or service that is purchased. With troubling regularity, however, Apple has 'double billed' customers for purchases made through the Apple Stores. In those cases, when a customer purchases a song, movie or book, Apple bills that customer twice for the same download. Apple, however, has effectuated a policy and practice of refusing to refund the extra charge to customers whom it has overbilled." Therefore, the lawsuit alleges, Apple violates its own terms of agreement as well as California state and common laws.
Furthermore, Herskowitz claims that Apple follows the same illegal policy at its App store, iBookstore and he Mac App store. Herskowitz is seeking damages of more than $5 million for a national class.
Berman DeValerio of San Francisco, is the law firm representing Herskowitz, and potential class members.