Lawyers for Apple on Friday asked a federal judge in San Jose to trim the multidistrict litigation accusing the company of surreptitiously slowing the speeds of certain iPhones because of problematic batteries.

Apple's lawyer, Christopher Chorba of Gibson, Dunn & Crutcher, told U.S. District Edward Davila at a hearing on the company's motion to dismiss that customers had authorized Apple to install software on the affected iPhones and that the decreased performance speed was a trade-off to squelch sudden, unexpected shutdowns. Chorba argued that authorization from the plaintiffs negated their claims brought under the Electronic Communications Privacy Act, its California parallel, and for trespass to chattels.

Davila seemed to hear Chorba out on that point. “They are hacking statutes,” said Davila, in a hearing where he largely let the lawyers make their arguments without interjecting. “It seems like historically those statutes existed to penalize hackers, outside third-party trespassers.”

Plaintiffs counsel, a 39-lawyer team led by Joseph Cotchett of Cotchett, Pitre & McCarthy in Burlingame, California, and Laurence King of Kaplan Fox & Kilsheimer in San Francisco, have argued that Apple made the changes surreptitiously to cover up product defects. They claim the software changes slowed performance speeds of iPhone 6-generation devices to spur consumers into buying newer, more expensive models. They also claim Apple failed to disclose those changes until customers complained and a technical expert demonstrated that the phones had curbed performance.

At Friday's hearing, Chorba said that the case should be limited to U.S. plaintiffs and to the iPhone 6 devices. He asked the judge to preclude plaintiffs' attempts to add iPhone 5-generation devices and iPads to their claims. Chorba said that the “performance management features did not run on those devices.”

But plaintiffs counsel Mark C. Molumphy of the Cotchett firm responded by arguing that the plaintiffs' theory of the case was twofold: First, Apple's devices, including iPhone 5 models and iPads, were deficient “out of the box” because their batteries weren't sufficient to support their powerful processors and sophisticated software. Second, the company tried to cover up the problem through the software fix without telling consumers about their phones' diminished performance.

Molumphy contended that the ECPA and its California parallel didn't require that access be without consent in instances where damage is caused. He also questioned whether Apple had consumers' consent in the first place.

“If you're asking me consent to download a software update to improve the performance of my phone, but in reality that software is throttling my phone,” he said. “I'm not consenting to that.”

Later in the hearing, David Straite of Kaplan Fox, another of the plaintiffs' attorneys, picked up on Molumphy's argument.

“This was a trade-off, but it wasn't a trade-off that customers chose. It was a trade-off [Apple] forced on its customers,” he said.

Straite also pushed back against Apple's contention that plaintiffs were attempting to make the case the “first global MDL.”

“That would be great for all our resumes and for Mr. Chorba's. … Sadly for our marketing material that's nowhere near true,” said Straite, noting that the plaintiffs had identified 50 class action cases that had cross-border elements in an attachment to their opposition papers.

The hearing went nearly a half-hour over its allotted hour time. Davila took Apple's motion to dismiss and a separate motion plaintiffs made regarding Apple's communications with class members under submission without indicating his leanings or when he might rule.

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Apple to Take Its First Shots at Narrowing Suits Over Throttled iPhones