Apple's iPhone 6.

A federal judge has preliminarily approved a potential $500 million class action settlement with Apple Inc. over the alleged throttling of older iPhones.

The settlement, reached Feb. 28, could provide $25 to each class member, depending on how many make claims, and come after nearly two years of discovery battles, including sanctions against plaintiffs attorneys Joseph Cotchett and Mark Molumphy, of Cotchett, Pitre & Molumphy in Burlingame.

"The settlement was reached after extensive litigation," Molumphy said Friday. "This was a very active, hotly contested case. Virtually everything was contested."

At a hearing Friday, U.S. District Judge Edward Davila of the Northern District of California found the settlement met the requirements of Federal Rule 23 of Civil Procedure, which governs class actions and the Northern District of California's guidelines for class actions.

The judge conducted the hearing via Zoom given the lockdown orders tied to COVID-19. Both he and Apple attorney Christopher Chorba, of Gibson, Dunn & Crutcher, joked that the screen displaying the faces of 11 lawyers resembled the TV game show "Hollywood Squares."

The settlement resolves claims, coordinated into multidistrict litigation, that Apple surreptitiously throttled iPhone 6 and iPhone 7 products when consumers upgraded software onto the devices. Davila dismissed several of the claims, including consumer fraud and those brought by Apple customers in 39 other countries.

"Through extensive briefing on the pleadings, your honor narrowed this case quite significantly, so now we're dealing with computer hacking and computer intrusion claims," Chorba said Friday.

Apple has denied the allegations—Chorba noting there was a "fundamental disagreement on the impact of these software upgrades." Chorba also indicated that the settlement would likely end up costing closer to $310 million, a minimum to which both sides agreed. At that amount, Apple agreed not to accept any reversionary funds should the number of class members submitting claims for payments fall below the settlement's estimate.

He noted that that the class, which was not certified, did not include everyone who owned an iPhone 6 or iPhone 7 but was limited to those who downloaded the software upgrades.

"It's a very, very narrow group," Chorba said Friday. "The number of devices does not correlate with the number of people."

Davila spent most of the hearing focused on whether lawyers planned to include languages other than English in the notices, sent primarily electronically using Apple ID information. He also wanted to make sure enough class members got the notices, noting that the settlement proposed a "discrete" and "finite" method that could result in a "high degree of accuracy" in reaching them.

"That gives me confidence the parties will be able to capture the class with some degree of certainty," the judge said.

Davila did not address a proposed $93 million in attorney fees filed by 39 plaintiffs firms appointed in the multidistrict litigation, plus dozens of others working on related cases in California state courts, which also are part of the settlement. In a March 13 statement, Apple said it "reserves its right to object to and oppose class counsel's forthcoming requests for attorneys' fees and/or expenses on all grounds."

Davila also did not mention his 2019 sanctions ruling against Cotchett and Molumphy, both of whom Apple attempted to remove from the case after they disclosed confidential information during a discovery hearing last year. The order required Cotchett to get court permission before arguing motions in the case.

At the start of Friday's hearing, Chorba questioned whether the judge approved of Cotchett and Molumphy participating, to which Davila assured that he wished to hear from them.

Davila also did not question the lawyers on a May 11 objection filed in the case that insisted the Cotchett Pitre firm had a conflict of interest, because its lawyers previously represented Apple in the antitrust case over lithium ion batteries. That filing came from Edward and Darlene Orr, who have objected to settlements in other cases.

Davila said objectors could raise concerns later, prior to a hearing on final approval, which he suggested could be in December. In approving the settlement, he emphasized that he welcomed Cotchett's statements on any matters involving the case.

"The court finds counsel will continue to represent and prosecute this case vigorously," he said. "The court finds there are no conflicts that impair the representing of the class in this matter."