I Threaten to Sue Apple Over an iPad2 Cover

I'm a fan of iPad, having had my first one for a year. In the beginning I was worried I wouldn't understand it or use it right, but that quickly changed. They'll have to pry it from my cold dead fingers to bury (well, cremate) me. So I was very pleased when iPad2 was released last month, and promptly bought one. However, that particular iPad2 had an antenna problem (it couldn't find a wifi signal, not even in the Apple Store), so Apple promptly swapped it out for a new one.

My old iPad had a hard cover that protected both the back and front, but the Apple people are very proud of the new cover for iPad 2. They shouldn't be. First of all, it only covers the front of the iPad which has a glass facing. Secondly, it's held on by magnets at one end. Seven days after I got the new iPad, it slipped from my car seat in the garage, stripping its magnet cover as it fell to the floor, creating a crack on the glass. Seven days.

I went back to the Apple Store and showed them the problem. "Accidental damage is not covered by the warranty," I was told, but they'd be willing to replace my iPad 2 for $299. How kind of them.

Sometimes it helps to be a Professor of Law who is well-versed in commercial problems (having taught them for over 40 years, and written seven casebooks used across the country in many different law schools). I sat down at my computer and composed the following:

"I am contemplating filing a complaint next week in the Franklin Country Small Claims Court asking for damages caused to my iPad2 (purchased two weeks ago) when the cover fell off as the iPad slipped from the seat of my car to the garage floor, damaging the glass front by creating cracks in it (cracks that are expanding and ruining this very new iPad). The truth is I have been much disappointed in your new cover. The old one was perfect: a hard object protecting both front and back that couldn't slip off at the moment you most needed its protection (and foldable into an unmovable shape). The magnets on the new one sometimes work fine and sometimes not, and often detach at a touch or push from the wrong angle, witness my garage floor fall (which would have been nothing had it been encased in the old cover). The new one has the sleep feature which is more difficult to use (assuming the cover is fully extended on the non-screen side) than simply hitting the sleep button, and the new cover will not hold its place unless the folded part has pressure on it, making it impractical to prop up at an angle where the cover does not bear the weight.

"I took my cracked iPad 2 to the local Columbus, Ohio, Apple Store at Easton and was advised I could replace it for $299. Since I think of a malfunctioning iPad cover as your problem and not mine, I declined that.

"As a quick Google search will show you I am a well-known law professor at The Ohio State University College of Law, one of the leading experts on consumer law in the United States. Your cover is in violation of the implied warranty of merchantability, section 2-214 of the Uniform Commercial Code, a statute in effect in all jurisdictions in this country except Louisiana. My Small Claims action (the court has jurisdiction up to $2000) will be filed with that as the theory. The Law Professor Contract listserve will be much amused to learn I'm suing Apple over the iPad cover.

"But, frankly, I don't want to sue. I want an iPad 2 (which I otherwise love) that isn't scratched with cracking glass within two weeks of purchase. If you will replace the iPad 2 and refund the money for my cover and I'll be a happy man.

"Please let me hear from you about this by next Wednesday, April 13, 2011.

"Douglas J. Whaley"

Then I called Apple Support and spoke with a nice young man. He asked what my problem was, so I read him the letter, word for word. He promptly called his supervisor, who was also a nice young man. I then read the supervisor the letter. He explained that accidental damage was not covered by Apple's warranty. I told him that was probably right, but didn't get rid of the implied warranty under the Uniform Commercial Code, and a cover that won't protect its product won't do. He asked if I sued a lot. Never before, I replied, but a Small Claims Action is easy and we'll let the court decide if a cover that detaches this readily is merchantable. He asked me to wait while he talked to his supervisor. Eventually he returned to the phone and, very efficiently, told me that since I'd always been a good Apple customer they'd decided to make an exception in my case, and would replace my iPad2 at the Apple Store. I told him I was very grateful, he gave me the case number, and the next day I had a new iPad2 (my third). Indeed, at the store it was determined I'd originally been overcharged at the original purchase by $138, for which the store gave me a gift card—I immediately used it to buy insurance on the new iPad2! With Apple's permission, I'm returning Apple's original cover; I'll buy a sturdier one elsewhere.

I also should note that I do think the Apple cover is badly designed and in breach of the warranty mentioned. It would be unethical to threaten something in which you do not have a good faith belief. I'll bet big bucks that the iPad3 will have a sturdy cover and not this magnetic pretense of protection.

Thank you, Apple, for all your help. I'm truly grateful. The third time's the charm, I hope.
Related Posts:

“The Payment-In-Full Check: A Powerful Legal Maneuver,” April 11, 2011; http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html

“What Non-Lawyers Should Know About Warranties,” October 11, 2011;

"How To Write an Effective Legal Threat Letter," October 19, 2011; http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html

“How To Win Arguments and Change Someone’s Mind,” August 5, 2012;

“Mortgage Foreclosures, Missing Promissory Notes, and the Uniform Commercial Code: A New Article,” February 11, 2013; http://douglaswhaley.blogspot.com/2013/02/mortgage-foreclosures-missing.html

“Legal Terms You Should Know,” September 13, 2013;

“How To Respond to a Legal Threat.” March 29, 2014; http://douglaswhaley.blogspot.com/2014/03/how-to-respond-to-legal-threat.html

“Clicking on 'I Agree': Sticking Your Head in the Lion's Mouth?” September 27, 2014;

 “My Battle with Sony To Get a Refund on a DVD Player,” July 16, 2015;

“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html


  1. Perfect! Another reason why I love reading your blogs.

  2. I have never forgotten what you taught us the first year -- "Gall is all."

  3. We had a different type of accident related to the annoying smart cover. i am trying to search the web for information but can't find any.

    anyway, after using the ipad, my fiancé placed it beside him on a dvd-player that was next to his chair. When he got up and grabbed his ipad the magnetic cover clinged onto the dvd-player so hard that when he tried to lift it he lost it and it slipped on the floor.

    Result: a big fat dent on the side of the ipad, in fact it is so dented that the volume button is constantly under pressure, and set to maximum volume.
    Also, the big volume icon is now constantly on display on the screen, atop of everything else you try to do.

    Do you think we could "sue Apple" because of this?


  4. You have the same problem I had: the cover breaches the implied warranty of merchantability (that it will fulfill its ordinary function, in this case protecting the iPad). This warranty breach gives rise to consequential damages in the amount of the damaged iPad. Try that in your arguments with Apple, and in the local small claims court if they won't satisfy you.
    Douglas Whaley

  5. Thank you, I will try this immediately!

  6. I received my last check and stamped on the back it says " endorsement of this check constitutes final settlement for all services and acknowledges there are no further claims against _ _ company." Should I cash it or speak with an attourney as I feel wrongfully terminated.

  7. See my blog post on payment-in-full checks at http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html. I can't give specific legal advice, but there I say over and over that if the check is cashed and there is a bona fide dispute as to the amount owed, the cashing of the check is a settlement and the dispute is all over. The only smart thing to do with such a check is to send it back.


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