Joseph Birdsong v. Apple, Inc.

Background

Apple’s iPod is an electronic device which stores and plays digital audio files. Each iPod comes with a set of detachable “earbud” headphones. The iPod can be used without its ear- bud headphones to play music through different headphones. According to the third amended complaint, iPods have the capability of producing sounds as loud as 115 decibels. Apple includes a warning with each iPod:

Avoid Hearing Damage

Warning: Permanent hearing loss may occur if ear- phones or headphones are used at high volume. You can adapt over time to a higher volume of sound, which may sound normal but can be damaging to BIRDSONG v. APPLE, INC. 16871 your hearing. Set your iPod’s volume to a safe level before that happens. If you experience ringing in your ears, reduce the volume or discontinue use of your iPod.

Apple also provided warnings on its website.

Birdsong bought an Apple iPod in May 2005 and another in October 2005. Waggoner bought an Apple iPod in January 2005 and, six months later, a set of noise-cancelling head- phones to be used with his iPod.

Birdsong, a Louisiana resident, filed this action in the Western District of Louisiana, seeking to represent a…