By Ron Zapata, Portfolio Media

Apple Inc. and AT&T Inc. have been hit with a purported class action lawsuit claiming that the companies fraudulently withheld information from consumers about the iPhone's battery.

The lawsuit follows a complaint sent to Apple CEO Steve Jobs by the New York State Consumer Protection Board which asks him to revise the company's battery replacement program, which costs consumers $79 plus shipping.

Jose Trujillo filed a purported class action lawsuit last Thursday in an Illinois state court against Apple and AT&T, claiming that the companies' “purposeful and fraudulent concealment” of information about the iPhone's battery and its replacement program violates state consumer protection laws. AT&T is the exclusive cellular phone carrier for the iPhone, a combination cell phone, multimedia player and Web-browsing device sold in Apple and AT&T stores.

“Although Apple and AT&T outlined its cellular service rates and many other features of the iPhone in advance of its launch, Apple and AT&T waited to disclose the durability of its battery, the terms and conditions of its battery replacement program and 'loaner' program, and the cost of same, until after the iPhone went on sale,” the lawsuit said.

Trujillo said that if he had known about the program, he might not have bought the phone and signed up for the necessary minimum two-year service plan with AT&T.

While the iPhone was launched on June 29, details of the battery replacement program were not revealed until July 5, according to Trujillo. The proposed class would include the estimated 500,000 consumers who purchased an iPhone during its first week on sale.

Trujillo said that the companies hid the fact that the battery is soldered inside the iPhone and cannot be changed by the owner; that the battery can only be charged about 300 times, or about one year, before it needs to be replaced; and the costs and inconvenience of the battery replacement program.

The program requires users to send their phone to Apple for service, during which all data from the phone would be erased. Apple charges $79 plus $6.95 for shipping and handling for the service, which normally takes about three days. During that time, Apple offers a loaner iPhone for $29.

“The battery replacement program will cost iPhone consumers nearly 20% of the purchase price of their phone annually, amounting to a de facto annual maintenance and/or service charge,” the suit said. The iPhone retails for $499 for a 4GB version and $599 for an 8 GB version.

The suit accuses Apple and AT&T of breach of contract, breach of implied warranties, unjust enrichment and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act and similar statutes throughout the U.S.

An AT&T spokesperson said the company does not comment on pending litigation. He referred all inquiries about the iPhone to Apple, which did not return requests for comment Thursday.

Apple has said that after about 400 charges, the battery loses some of its capacity and it would normally take several years to drain the whole battery. If the iPhone's battery dies within its first year, Apple will replace it for free under warranty. Apple also said a replacement program would clear an iPhone's data, but the information can be backed-up through the Apple computer program iTunes.

Christopher S. Griesmeyer, a partner at Levenfeld Pearlstein LLC who specializes in business torts, said the technology in the case is irrelevant.

“What matters is how well did Apple communicate [the battery issues] to the first round of prospective customers,” Griesmeyer said. “The technology is not at issue, the fact the battery can't be removed isn't even an issue. What is at issue is whether consumers were aware of that fact when they were purchasing the phone.”

He said he believed Apple would first seek to move the case to federal court—which tends to be friendlier to class action defendants—and then move to dismiss the complaint and attack class certification. Only after those fronts are covered would Apple consider a settlement, Griesmeyer believed.

The lawsuit isn't the only complaint about Apple's battery replacement program.

On Monday, the New York State Consumer Protection Board issued a press release calling on Apple to revamp its customer service policies to make it easier and less expensive for consumers to repair an iPhone.

In her letter to Jobs on July 17, CPB Chairperson and Executive Director Mindy A. Bockstein said iPhone users should not have to pay so much to replace a battery. She asked Apple to review its disclosure practices regarding contract terms, warranties and returns.

“In Apple stores and online, these disclosures should be more prominent and conspicuously displayed,” Bockstein said. "A high-end cell phone shouldn't have to have low-end customer service."

Bockstein suggested that Apple redesign the iPhone to allow a consumer to replace the battery instead of sending it away for a new power supply.

The CPB also objected to Apple's phone loaner program, the 10% restocking fee Apple charges for iPhone returns and the company's 14-day trial period.

In its third quarter report ended June 30th, Apple reported selling 270,000 iPhones and related products and services in its first two days of sales. Jobs said he expected to sell one million iPhones by the end of September.

Trujillo is represented by Larry D. Drury Ltd.

The case is Jose Trujillo v. Apple Computer Inc. and AT&T Inc., case number 07-ch-19744 in the Circuit Court of Cook County, Illinois.