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Pear, Inc. already has admitted that it purposefully slowed down Bob's uPhone with software upgrades, and therefore, Bob is concerned to update any new software from Pear.

Some time before in software update section in settings Bob used to have a "download update button" but after uOS 11 there are no "download update button" now, and it is replaced by an "Install update button". As a result of this change, Bob's uPhone now downloads any update without any affirmative step of Bob. Once downloaded, the phone prompts Bob to upgrade the newly downloaded OS taking up significant space on the phone.

Sometime Bob gets notifications on the phone including: “Update will be installed after 10pm if connected to power”. That means, Bob either lets the phone die or accept that the phone will upgrade despite Bob's actual intention.

Bob hoped to cease this behavior of the uPhone and deleted the update. Unfortunately, after few days the update was downloaded again and prompted Bob to install again.

Bob is using a 4G-based hotspot service with limited data to all Bob's devices which results in undue and unintended consumption of the data allowance causing material harm to Bob every time an unnecessary update of 2.5gb is downloaded despite the express rejection of the update (in that it was deleted previously). The associated costs are significantly harming Bob financially as well as take significant and unnecessary time to revert the changes on the device.

Bob is effectively compelled into updating against his original intentions based on the bargain he made for the purchase of uPhone.

What statutes may Bob rely on to sue Pear?

5
  • 3
    What makes you think Apple needs your express permission to download updates? Did you read the license agreement?
    – Greendrake
    Mar 4 '19 at 19:11
  • 2
    Where do you want to sue? What damages have you suffered (e.g. money, time, etc.)? What remedy or remedies do you seek (e.g money, a new phone, a legal order barring Apple from performing specific actions)? Does Apple not have the right to do the actions that have harmed you? In order to successfully sue, answering the above questions is a first step.
    – sharur
    Mar 4 '19 at 19:19
  • 1
    How to sue? Step 1: get a lawyer. Step 2: tell them to sue Apple. Step 3: pay the huge legal bill you will be presented with as preparation for said action. The very fact that Apple has a button saying "Install update" and you have to click it to install the update invalidates your claim that they are forcing you to do anything of the sort. Button remains unclicked - update remains uninstalled.
    – user4210
    Mar 4 '19 at 20:02
  • @Greendrake probably would violate an implied warranty of merchantability or an express warranty in that it is ordinarily used for storing data to the extent allowed by its storage (implied) and to a specifically promised-in-writing extent (express)
    – kisspuska
    Jul 11 at 5:45
  • KINDLY SUPPORT REOPENING, I WOULD LIKE TO ANSWER THIS IN DETAIL. I could do problem spotting in detail on different theories (breach of contract, breach of implied/express warranty; for loss of storage space and use of data: conversion; for time: loss of time value of money, loss of opportunity plus loss of time for retrieval of consideration subject to conversion)
    – kisspuska
    Jul 11 at 6:11
3

You almost certainly can't (successfully) sue Apple because the license agreement that is part of the product you purchased almost surely gives it permission to do so. A tech support based solution would be a better alternative to litigation.

5
  • In many cases, those license agreements are entered into post-purchase. I think it is a violation of an implied and/or express warranty that the use can't use the storage to a reasonably full extent. A 64 Gb phone uses about 12-13 gigs for the OS, and it actually counts mega-giga by a decimal system not in binaries so it already loses a few gigs. Say you have 45 Gigs. An update may take up unto 2 gigs or ~4-5%. Even if Apple refunds in full, say, the consumer refuses to agree to the license agreement and has to return, they will suffer the opportunity cost of money value of time
    – kisspuska
    Jul 11 at 5:51
  • If they didn't agree to the license agreement, I think a class action could be brought like Veera v. Banana Republic except for the loss is not the price difference but time as in Dieffenbach v. Barnes & Noble, Inc. or, for the case of Apple in Cal. Van v. LLR, Inc. (9th Cir. 2020) 962 F.3d 1160. I do agree, though, their powers would still win (money, and access to the best attorneys etc.)
    – kisspuska
    Jul 11 at 5:54
  • There is probably some other theoretical harms like usage of the internet service and proportionate cost or benefit of the bargain in the slowed internet connection (just doing some problem spotting)
    – kisspuska
    Jul 11 at 5:56
  • 1
    @kisspuska Your views, however legitimate, would be on the losing side of case law.
    – ohwilleke
    Jul 12 at 16:48
  • @@ohwilleke Thank you for the sympathy, noted that!
    – kisspuska
    Jul 18 at 6:55

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