Apple Computer Inc. faces a lawsuit that alleges the company knew its nano portable music player was defective but still decided to press on with the product's release last month.

Apple Computer Inc. faces a lawsuit that alleges the company knew its nano portable music player was defective but still decided to press on with the product's release last month.

The lawsuit depends on a judge to decide whether it can be grouped with other complaints to win class action status. Sales of iPods account for almost a third of Apple's sales.

The credit card-sized nano, which replaced the best-selling iPod mini and is smaller than the traditional iPod, met with rave reviews. But users quickly started grumbling on Internet message boards that the device's screen scratches too easily.

The lawsuit, filed in San Jose, Calif., last week, claims that the nano scratches "excessively during normal usage." It alleges that though Apple knew the nano had design problems, it released the product and led consumers to believe it was durable -- forcing them to shoulder the cost of replacing defective music players.

The complaint blames the nano's defectiveness on the film of plastic resin that covers it to protect it from damage. Previous versions of the iPod were coated with thicker and stronger resin, the suit says.

"Rather than admit the design flaw when consumers began to express widespread complaints ... Apple concealed the defect and advised class members that they would need to purchase additional equipment to prevent the screen from scratching excessively," the complaint says.

Apple admitted in late September that some iPod nano screens cracked too easily, but blamed that separate issue on vendor quality problems and said it had occured in less than one-tenth of 1% of the nanos sold at that point.

The plaintiff named in the California lawsuit, Jason Tomczak, bought a nano in September. He said it quickly became so scratched he could not view the screen. Apple replaced that device because of a battery problem, but the complaint claims the replacement nano also became so scratched that Tomczak decided to return it.

Because Tomczak and other complainants were required to pay a $25 fee to return the nano, the proposed class action suit seeks the return of those fees along with the device's original cost and several other forms of damages.

The suit, filed by law firm Hagens Berman Sobol Shapiro LLP, says Apple has "failed to remedy the problem in any meaningful way" and claims Apple deleted postings on its Web site that relate to the scratching problem.

A spokesperson for Apple, whose main offices are in Cupertino, Calif., could not be reached for comment.


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