Telstra has revealed the addition of almost one million new mobile services in the six months to December 2011, but Sensis revenues plummeted 24 percent in 12 months.
"There is no evidence that Trujillo actually could have gotten the agreement upon which ATTM [AT&T Mobile] relies in advance of his purchase of the iPhone from the Apple store," wrote Kennelly in his judgement.
"The Court has a hard time believing that the theoretical availability, under a proverbial rock, of an obsolete version of an agreement not actually shown to the consumer can render it enforceable".
Significantly, Trujillo was not given an opportunity to return the iPhone without financial penalty once he became aware of and chose not to accept AT&T's terms of service.
An interesting aspect of the case is that Trujillo and another person who is not party to the case each purchased an iPhone as a gift for the other. The iPhone purchased by Trujillo was activated by the other person on her existing AT&T account, and she had previously received a copy of AT&T's terms of service including the arbitration clause.
Trujillo opened a new AT&T account to use the iPhone he received and presumably agreed to the terms of service as part of the activation process. But that was after he purchased the iPhone that is the subject of the court case.
"The Court does not see why a person who, due to a merchant's deception, purchases as a gift for someone else an item that turns out to be something other than what it was represented to be should be any less able to sue for fraud than a person who makes such a purchase for himself," wrote Kennelly.
"Indeed, were it not for the fortuity that Trujillo later received a different iPhone as a gift and then signed up for service with ATTM, ATTM would not even have a straight-faced argument in favor of arbitration. Trujillo entered into no agreement with AT&T in connection with his purchase of the iPhone at issue in this case."
A status hearing in the case between Trujillo and AT&T is scheduled for today, September 29.
Apple and AT&T face at least three other lawsuits that could potentially become class actions over the iPhone 3G's performance.
David Bass
| For the fourth year in a row, IDC has placed content security provider Websense (NASDAQ: WBSN) at the top of the IDC Worldwide Web Security 2011 –…
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