iStock/Thinkstock(NEW YORK) -- Some "newly discovered evidence" may be just the silver bullet that could put the classic song "Happy Birthday to You" in the public domain.
The decades-old song that nearly everyone in America can sing is owned by music company Warner/Chappell, which charges licensing fees to people who use it commercially. One of those customers is filmmaker Jennifer Nelson, who produced a documentary movie about the song called Happy Birthday.
Nelson wasn't so pleased about paying $1,500 to use the song in the film, so she sued Warner/Chappell in the hope of having the tune in the public domain for all to use for free.
She filed a class action lawsuit under her company Good Morning to You Productions in June 2013 in Los Angeles federal court. But lawyers for her side are pointing to a 1920s children's music book called The Everyday Song Book from music publisher The Cable Company, which includes a song called "Good Morning and Birthday Song." Book editions with the song go as far back as 1922, the lawyers claim in the lawsuit.
The tune can be traced to sisters Mildred and Patty Smith Hill, who in the late 1880s wrote a song with the same melody called “Good Morning to All.” In 1988, Warner/Chappell bought Birchtree Ltd., a company that held the rights to the birthday song.
The new information about the 1920s songbook was not highlighted when both sides of the case had to produce facts during the discovery process by June 27, 2014. But this week, attorneys for the plaintiffs asked the court to consider "newly discovered evidence mistakenly withheld by [the] defendants during discovery as well as evidence discovered by [the] plaintiffs."
"The songbook that we tracked down shows that the publisher authorized the publication of the lyrics to 'Happy Birthday to You' in 1921 or 1922," one of the attorneys for the plaintiffs, Daniel J. Schacht, told ABC News. "That puts them in the public domain in 1949 or 1950."
The new information came just in time for the plaintiffs. Judge George King had planned to hold a hearing this week about whether or not the song's writer, Patty Hill, abandoned her rights to the lyrics.
In the recent document filed by the plaintiffs, they call the songbook "proverbial smoking-gun evidence," because it predates the music company's 1935 copyright.
The lawyers for the plaintiffs say that the songbook documents "conclusively prove that any copyright that may have existed for the song itself" had "expired decades ago."
Warner/Chappell and the attorneys that represent the company did not respond to a request for comment from ABC News.
MEHDI FEDOUACH/AFP/Getty Images(NEW YORK) -- Former supermodel Jane Birkin, who said she no longer wants to be associated with Hermès' Birkin handbag, inspired the ultra-luxury product through a random encounter on a plane.
Birkin said she doesn't want her name to be on the bag after PETA released a report about the farming methods of crocodiles and alligators that make the French product. Crocodile Birkin bags can cost around $60,000 in Hermès stores and leather Birkin bags can retail for around $10,000.
According to Agence France-Presse, Birkin said: "Having been alerted to the cruel practices endured by crocodiles during their slaughter for the production of Hermès bags carrying my name, I have asked the Hermès Group to rename the Birkin until better practices responding to international norms can be implemented for the production of this bag."
The story of how the bag, carried by celebrities like Kim Kardashian and Jennifer Lopez, was named after her began on an Air France flight in 1981 to London. At the time, she was sitting next to Jean-Louis Dumas, the chief executive of Hermès.
"I'm not quite sure what type of bag I had with me -- my husband, Jacques Doillon, had reversed his car over my basket, crushed it on purpose not two days before," Birkin told The Telegraph in March 2012. "Little did he know that on this airplane journey, when everything fell out of whatever bag I had, the man next to me said, 'You should have one with pockets.' I said: 'The day Hermès makes one with pockets I will have that', and he said: 'But I am Hermès and I will put pockets in for you.'"
She then told The Telegraph that she drew a prototype on an airplane sickbag.
Birkin said about the naming, "I was very flattered!" according to The Telegraph. The company gives money as a form of royalty to Birkin to charities of her choice. In 2012, that figure was 30,000 British pounds or about $47,000, according to the British newspaper.
On Wednesday, Hermès said it agrees with Birkin's shock at PETA's investigation of cruelty to animals.
"Jane Birkin has expressed her concerns regarding practices for slaughtering crocodiles. Her comments do not in any way influence the friendship and confidence that we have shared for many years," Hermès said Wednesday, according to Vogue. "Hermès respects and shares her emotions and was also shocked by the images recently broadcast."
Hermès and Birkin's representatives did not respond to requests for comment from ABC News.
Delta Airlines(NEW YORK) -- For a few very frequent fliers, an upgrade no longer means a seat in first class. On Delta, the very best customers will have the option to fly private instead.
The airline calls the option to fly private "a new surprise-and-delight program" limited to Medallion members traveling on select commercial Delta flights. Being a Medallion member on Delta requires a minimum silver-level spend of $3,000 per year and 25,000 miles or 30 flight segments. The highest level of membership requires a $15,000 spend per year and 125,000 miles or 140 flight segments.
But by opting to travel in a private jet, “you are removed from the airport aggravation,” Delta Private Jets COO David Sneed told ABC. “You’re whisked away onto the airplane, the door closes, and we taxi toward the runway.”
The private upgrade opportunities will be limited to select passengers in specific markets where an available Delta Private Jets aircraft is otherwise not in use, the airline said. Customers will be contacted by Delta Vacations via email and offered the upgrade for a fee, which includes transportation to the airport’s private aviation area and complimentary on-board catering.
The cost of the upgrade is between $300 and $800.
Delta hopes that once passengers experience private travel, they won’t want to go back.
“If you’ve never been on a private jet, it’s very difference from what you experience in the commercial space,” Delta Private Jets president Erik Snell told ABC. “You’re essentially buying the entire plane, whereas on the commercial side, you’re buying a seat.”
“Private travel offers concierge-level services that Delta’s premium customers are sure to appreciate, and Delta Vacations is pleased to offer opportunities for these experiences,” said John Caldwell, president of Delta Vacations. “This is an innovative way for us to thank valued Delta customers for their loyalty.”
The new program, which the airline said is patent-pending, is a joint effort of Delta, Delta Vacations and Delta Private Jets.
Because Delta is the only U.S. airline that also owns a private jet company, Snell said, it’s uniquely positioned to offer the upgrade.
stu99/iStock/ThinkStock(NEW YORK) -- Stocks rose higher on an indication from the Federal Reserve that it may be ready to raise interest rates later this year.
The Dow closed up 120 points while the NASDAQ rose 23 points. The S&P added 15 points.
Facebook reported its latest earnings after the close - it's second quarter numbers beat expectations.
If you're planning to make a big purchase, something you'll need to finance, you may want to do it soon. The Federal Reserve has indicated it could raise interest rates later this year but it still wants to see more growth in the economy. It won't offer a timetable for the increase.
Justin Sullivan/Getty Images(NEW YORK) -- Microsoft really wants to make Windows 10 omnipresent in the lives of its users.
With the release of Windows 10 Wednesday, Microsoft is emphasizing a computing experience that can move seamlessly between the PC and almost any smartphone, including iPhone and Android devices.
While Windows 10 stands out for a variety of functionality upgrades and a sharp new browser, the software upgrade released today also includes a phone companion app, allowing users to connect whatever smartphone they own to their Windows 10 PC.
Windows phones don't require anything extra, however Android and iPhone users will be guided through a few additional steps to get their smartphones integrated.
The result: All of the files from a Windows 10 PC will also be accessible via smartphone and anything taken on the smartphone can also be located from a Windows 10 equipped computer.
That means any notes taken and edited can be synced across the devices and every photo taken on a smartphone can also be accessed on its partner PC -- no extra downloading necessary.
Perhaps the juiciest development of all: Cortana can now hone in on Siri's turf. Microsoft's digital personal assistant is available through the Windows 10 phone companion app at launch in select markets, however she won't be able to be called hands-free.
Cortana will instead live in an app form on Android and iPhone devices that have opted to download the service. She will be able to remind you of certain tasks and answer questions, however there will be some limitations.
"Some features require access to the system that aren't currently possible with iOS or Android, so things like toggling settings or opening apps won't initially be available in the Cortana companions for those platforms," a Microsoft blog post said. "Similarly, the ability to invoke Cortana hands-free by saying 'Hey Cortana' requires special integration with the device’s microphone, so that feature will be limited to Windows Phones and PCs."
Microsoft hopes to upgrade a total of one billion people in the coming years.
iStock/Thinkstock(NEW YORK) — Two of the most expensive decisions consumers make -- buying a car and buying a house -- took the top spots of the most complained-about transactions in an annual consumer survey released Wednesday, but thanks to some recent high-tech data heists and stolen tax refunds, identity theft is tipping the scales of the fastest growing issue to worry about.
Complaints about purchasing issues and shoddy work on cars and homes helped propel those categories to the top of an annual survey released by the Consumer Federation of America (CFA) and North American Consumer Protection Investigators (NACPI) of state and local consumer protection officials.
But swiping identities was named the fastest-growing consumer gripe by state and local consumer protection officials in the survey.
Referring to the “epidemic of data breaches” in recent months, Susan Grant, director of consumer protection and privacy at CFA, noted the “particularly fast-growing and troublesome” rash of stolen tax refunds. Providing identity theft insurance after the fact is not enough, Grant said.
“What’s needed is to require better security for consumers’ personal information to keep it from being stolen and used in the first place,” she said.
The group’s top 10 consumer complaints in 2014 were:
1. Auto. Misrepresentations in advertising or sales of new and used cars, “lemons,” faulty repairs, leasing and towing disputes. 2. Home Improvement/Construction. Shoddy work; failure to start or complete the job.
3. Credit/Debt. Billing and fee disputes; mortgage modifications and mortgage-related fraud; credit repair; debt relief services; predatory lending; illegal or abusive debt collection tactics.
4. (Tie) Retail Sales. False advertising and other deceptive practices; defective merchandise; problems with rebates, coupons, gift cards and gift certificates; failure to deliver; (Tie) Utilities. Service problems or billing disputes with phone, cable, satellite, Internet, electric and gas services.
5. Services. Misrepresentations; shoddy work; failure to have required licenses; failure to perform.
6. Landlord/Tenant. Unhealthy or unsafe conditions; failure to make repairs or provide promised amenities; deposit and rent disputes; illegal eviction tactics.
7. Home Solicitations. Misrepresentations or failure to deliver in door-to-door, telemarketing or mail solicitations; do-not-call violations.
8. (Tie) Health Products/Services. Misleading claims; unlicensed practitioners; failure to deliver; (Tie) Internet Sales. Misrepresentations or other deceptive practices; failure to deliver online purchases.
9. Fraud. Bogus sweepstakes and lotteries, work-at-home schemes, grant offers, fake check scams, imposter scams and other common frauds.
10. Household Goods. Misrepresentations; failure to deliver; faulty repairs in connection with furniture or appliances.
The head of NACPI told ABC News at the group’s annual gathering in Colorado this week that complaints about car sales always rank high.
“Most people need a vehicle and you rely on your vehicle,” said Amber Capoun, president of NACPI. “You as a consumer, you walk in intimidated. You’re making this big purchase and you don’t think you can bargain with them.”
Transactions having to do with housing are similarly ripe for problems. In addition to complaints about home construction and remodeling, consumers report getting scammed by traveling repair crews that zoom in after a big storm and try to grab insurance money without finishing the repairs.
CFA also says the new “sharing” economy is creating problems for consumers who aren’t sure who is responsible when a transaction on a ride-sharing or online room-booking service goes sour. Most laws govern business-to-consumer transactions, and the new sharing marketplace can muddle that.
Consumer agencies in the survey pointed to debt collection as one of the most egregious areas, with consumers complaining about fraudsters bothering them for money they don’t even owe in addition to real debt collectors using abusive tactics to collect money on legitimate accounts. Debt collection is a frequent theme in complaints to The ABC News Fixer.
Colorado’s deputy attorney general, Jan Zavislan, told ABC News that Internet fraud also continues to bedevil government agencies because it’s virtually impossible to recoup people’s lost money when scammers are based overseas and cover their tracks with falsified URLs and spoofed phone numbers.
Zavislan added that he never trusts an online business that won’t provide a real world address: “What legitimate business doesn’t want you to know where they are?”
The consumer groups culled complaints from 37 state and local government consumer agencies in 21 states across the country. Those agencies received a total of 281,000 consumer complaints last year and report a total of $123 million saved or recovered for consumers through mediation or enforcement actions. The entire CFA/NACPI report can be viewed here.
SAUL LOEB/AFP/Getty Images(NEW YORK) — Is the boarding pass going overboard?
They could soon become a thing of the past, according to one top transportation official.
To address the glaring lapses in security over the last few months, TSA Administrator Peter Neffenger, who was recently confirmed, will specifically target screening — with a focus on checkpoints.
He predicts that the days of the boarding pass may be numbered, while outlining his 5 to 10-year vision for the “checkpoint of the future.”
“I think we can eliminate the boarding pass,” Neffenger said in a hearing on Capitol Hill Wednesday, adding, "the idea that you are your boarding pass and if I can tie you biometrically to a reservation, to an identification and I can do so in a verified way than one — that moves you through the process faster."
Neffenger notes that eliminating the boarding pass would remove the challenges for the document checkers at the checkpoints since there is little consistency with the passes, as each airline has a different style of boarding pass.
He emphasized that the checkpoint is a critically important element in security, as it is a visible deterrent and the last chance to catch any threat.
“[The checkpoint] is the barrier between the sterile and the non-sterile areas and there has to be an expectation of that area working,” Neffenger said.
Findings in the Homeland Security Inspector General’s report found major lapses in TSA security, showing that agents failed 67 out of 70 tests, when Red Team members who were posing as passengers were able to get potential weapons through checkpoints, according to officials briefed on the report.
Since the report, Administrator Neffenger said he is greatly disturbed by the failure and vowed to close these security gaps.
Rindoff/Le Segretain/Getty Images(NEW YORK) — Sofia Mechetner is sultry, sophisticated and wore a barely-there sheer white gown as she led a parade of models at Christian Dior’s Paris fashion show earlier this month.
And, she’s just 14 years old.
The Israeli native is the new star of the luxury fashion brand’s fall collection, but her tender age has reignited the fiery debate over how young is too young to be scantily clad on the runway.
"Fashion nudity is about art and not about sexuality," Sofia told The Jerusalem Post.
Her agent, Roberto Ben-Shoshan, also defended the young model’s runway walk in the sheer gown, saying she wasn’t shown in a sexual or demeaning way.
"[It was in] a very clean, fashionable way, I didn’t see anything sexy,” he said.
Ben-Shoshan plucked Sofia from obscurity when she walked into his office one day.
“Sofia for me was like the diamond,” he said. “She’s not only beautiful, she’s also unique. She’s got the unique look, the edgy look and also the beautiful look.”
After seeing her, Ben-Shoshan sent her to Paris where she was spotted in a Christian Dior store by the brand’s creative director Raf Simons.
“Young is fresh, and when I saw her, I knew only the top designers are going to take her,” Ben-Shoshan said.
Before she was discovered, Sofia and her family struggled to make ends meet. She used to help her mother clean homes to support her and her younger siblings, all the while sharing a one bedroom apartment. Now, she has reportedly signed a contract for $200,000.
“Dior will treat her like a queen, they pay for everything,” Ben-Shoshan said.
Being young has always been a fashion cache. Just a few years ago, French Vogue sparked international outrage when they showcased a 10-year-old girl with a bright red pout, posing suggestively, in one of their photo spreads.
But lately in the United States there has been a call for change. The Council of Fashion Designers issued guidelines saying a model must be at least 16 years old to work. But despite these reforms, there are still ways around them.
Cindy Crawford’s daughter Kaia Gerber, only 13, was given her own spread in Italian Vogue. Johnny Depp’s daughter Lily Rose Depp is the new face of Chanel eye wear at age 16.
The world of high fashion isn’t all glitz and glamour. It can be damaging. Supermodel Kate Moss started modeling at age 14, but told Vanity Fair in 2012 that she “had a nervous breakdown" when she was just 17.
“There’s massive pressure to do what you have to do… I was really little,” Moss told the magazine. “I see a 16-year-old now and to ask her to take her clothes off would feel really weird. But they were like, ‘if you don’t do it, then we’re not going to book you again.’ So I’d lock myself in the toilet and cry and then come out and do it.”
Victoria Secret model Karlie Kloss posed nude for Allure magazine at just 15, admitting to New York magazine that it was difficult starting out so young.
“I wish I would have been a little older, a little bit more mature because there’s a lot, in this career, there’s a lot you have to handle, and it’s somewhat difficult when you’re thrown into it -- and you don’t really know what to do,” she told New York.
Robi Ludwig, a psychotherapist based in New York City, said young models can have a skewed perception of what’s expected of them.
“It’s a double message when you think about it,” Lugwig said. “The problem is when these young teens get seduced and start believing that they are older than they really are and they’re not living the life that they should really live. And eventually that creates mental issues."
JUNG YEON-JE/AFP/Getty Images(NEW YORK) -- Windows 10 is here -- and for the first time in a while, there's actual excitement about Microsoft's operating system upgrade.
There's a sharper new browser that puts Internet Explorer to shame, Cortana integration and an emphasis on a more productive experience in Windows. Windows 10 is so radically different that Microsoft even skipped over naming it Windows 9.
Users who haven't already reserved a free upgrade in the Get Windows 10 app can still do so. Microsoft has the ambitious goal of rolling out the software to one billion users over the next few years.
Here's a look at some of the new features users can expect:
While Internet Explorer will still be there, Windows 10 also includes Microsoft's newest browser, Edge, which makes it easy to write notes on a webpage and seamlessly share with friends.
You can now ask Cortana to find you that expense report from last July or search for something online.
No TV screen is needed for Xbox streaming, which lets gamers stream from the device to any PC or laptop running Windows 10.
There's nothing more annoying than having to toggle between two windows you're trying to work out of at the same time. No more!
Users will be able to snap four apps to the same screen, meaning work just got that much easier. Mobile-First, Cloud-First World
When apps from the Windows store are opened, they'll run the same way as desktop apps -- in a Window. They can easily be minimized, maximized, moved around and closed with just one click. Multiple Desktops
Working on a slew of different projects? Create a desktop for each one.
Not only do we see this feature making it easier to focus on getting work done, but the best part -- your working doesn't have to be staring you down all the time. Let it live in its own desktop. Task View
When you want to pull up that big project, it's easy to do so.
A new button called "Task View" allows users to quickly switch between open files and new desktops they have created, making working in the operating system incredibly efficient.
moodboard/Thinkstock(NEW YORK) -- Freezing your assets -- like in Confessions of a Shopaholic -- shows us how some go to extremes to chill their spending.
Following that strategy is 23-year-old Kathleen Elkins, a Business Insider reporter challenging herself to a cash-only diet. She’s budgeting $125 a week for daily purchases outside of rent and utilities, which is about $21 less than the typical budget of a single American, according to the Internal Revenue Service.
“It's a great way to one, know exactly know exactly how much you’re spending, and two, know how quickly your cash can leave your wallet,” Elkins said on ABC News' Good Morning America.
According to Elkins, her cash-only diet has her on track to save at least $50 a month -- or $600 a year -- and with the average single American living with about $5,000 in credit card debt according to TransUnion, she said this kind of savings can go a long way. But it can be hard to stay on track.
“I had to buy a wedding gift -- you know, those things come up -- but that’s $60,” she said. “That leaves me with $65 left for the week. It was really eye opening when three days in the week and I’m out of money.”
ABC News’ chief business and economics correspondent, Rebecca Jarvis, joined Elkins for week three of the cash diet in New York City. Groceries were at the top of her must-haves, but after buying just almond milk and eggs, she was already out $9.38, which was nearly a 10th of her weekly budget.
Elkins said food expenses eat up a sizeable chunk of her weekly allowances, so she’s learned to be more conscious of what she needs versus what she wants, but it’s taken some discipline.
“I did buy a pair of Sperry’s, and I was with my friend and we were shopping and there were obviously a lot of things I could have bought,” she explained.
Elkins plans to continue with her “cash is king” philosophy, but still stick to credit cards for bigger purchases.
“It makes you really think long and hard,” she said.
1715 Fleet - Queens Jewels, LLC(FT. PIERCE, Fla.) -- Florida treasure hunters hit the sunken treasure jackpot.
Brent Brisben -- a co-founder of 1715 Fleet-Queens Jewels LLC, which has the rights to dive at the wreckage site where the gold was ultimately discovered -- told ABC News that the 60 gold artifacts on the bottom of the ocean floor are valued at over $1 million.
The artifacts include 51 gold coins and 40 feet of gold chains with hand-crafted links, he said.
The centerpiece of the discovery is a single coin, given the nickname the "Tricentennial Royal," which was destined to be delivered straight to Spanish King Phillip V, Brisben said.
This coin constitutes about half of the discovery’s expected value, with a price tag of more than $500,000, Brisben said.
The valuable find comes right before the 300-year anniversary of the 11-ship fleet sinking during a hurricane on July 31, 1715, off the Florida coast. The fleet had left from Havana, Cuba, on July 24, 1715. Brisben said the discovery was made about a month ago, but he wanted to keep everything under wraps until the anniversary got closer.
"The work that goes on out there is not typical of what you see here today. I don't want to call it an abrogation, but it's what the dreams of every one of the people doing this are made of," Brisben said at a news conference Tuesday.
The treasure discovery -- caught on video -- was found by one of the company’s sub-contractors, the Schmitt family, in 15-foot deep water off the coast of Ft. Pierce, Florida, according to Brisben.
"We're very respectful of the people who lost their lives in these shipwrecks. Unfortunately, they didn't make it," Eric Schmitt said at the news conference. "We're able to continue their story on by continuing to bring these artifacts up."
Over the past two summers, the Schmitts have made national news thanks to their discoveries from the fleet of Spanish ships, The Orlando Sentinel reported.
In 2013, the family found several pieces of a solid gold chain -- more than 60 feet in all -- and last year Schmitt found the back portion of a handcrafted gold-filigree pyx, a vessel used to hold the Eucharist during the Christian observance of Holy Communion.
Brisben said up to 20 percent of the find goes to Florida and the remainder of the treasure will be divided between the company and the Schmitts.
Artfoliophoto/iStock/ThinkStock(NEW YORK) -- A recent investigation of the Transportation Security Administration (TSA) showed security failures at many of the country's busiest airports.
Investigators were able to take mock explosives and other material through checkpoints.
Fare-Compare CEO Rick Seaney says, "If you can actually pass fake stuff through that kind of security, whether it's the body scanner or the x-ray machines, then something's wrong with their equipment and their training. And that's something they have to sort out. That's not security theater, that's just bad practice."
JaysonPhotography/iStock/ThinkStock(NEW YORK) -- Stocks regained some ground after several big companies reported better than expected earnings and as markets in China and Europe stabilized.
As global stock markets calmed, investors moved money out of safe-haven assets like bonds and commodities. Better than expected earnings lifted big companies like UPS, Ford, and Reynolds American.
After the bell, Twitter and Yelp beat earnings estimates. The S&P/Case-Shiller index of home prices, rose 4.9 percent in May from over a year ago. The Dow rose nearly 190 points at 17,630 and Nasdaq rose 49 points. S&P was up 25 and a half. Crude oil rose above 47 dollars a barrel.
Volkswagen surpassed Toyota in global vehicle sales for the period between January and June, the first time the German automaker came out on top.
A bill raising the lending authority for the Small Business Administration's biggest loan program was passed by the House and is being sent to President Obama.
iStock/Thinkstock(NEW YORK) — Chances are your Android device is one of the 950 million Android phones vulnerable to an exploit that allows hackers to gain control of the device by sending a malware infected picture message.
Details of the hacking threat, which has been dubbed Stagefright, were published this week by cyber security research firm Zimperium.
The only devices safe from the bug are those running anything below version 2.2, according to Zimperium. A Google representative told ABC News the company's Android team was notified of the bug.
"This vulnerability was identified in a laboratory setting on older Android devices, and as far as we know, no one has been affected. As soon as we were made aware of the vulnerability we took immediate action and sent a fix to our partners to protect users," the representative said.
It was unclear yet whether any of Google's partners had pushed out the patch to users. However, Robert Siciliano, an online safety expert to Intel Security, told ABC News that now is a good time to ensure automatic updates are enabled on their devices if it's an option.
"Android users by default should have antivirus running on their mobile devices," he added. "Unfortunately antivirus is a download that requires their attention."
Getty Images News(LOS ANGELES) — People who own a Nike FuelBand may be getting $15 or a $25 Nike gift card if a proposed settlement of a lawsuit over the fitness device's accuracy receives final approval.
A class-action lawsuit alleges that Nike and Apple breached their warranty and made false or misleading statements over the FuelBand's ability to accurately track calories and steps, according to the complaint filed with Los Angeles County Superior Court on May 17, 2013. A second, amended complaint was filed this May. The FuelBand offered by Nike and Apple uses a wristband accelerometer to track time, steps and calories burned.
Carolyn Levain from Los Angeles is the named plaintiff who filed the lawsuit regarding the device, which was first released in 2012. She says she bought one for herself and eight as gifts. Her lawsuit disputes the claims of the companies that the device "measures each step taken and calorie burned."
"In truth, the Nike FuelBand cannot and does not track each calorie burned, or each step taken," her lawsuit states. Levain could not be reached for comment by ABC News.
Nike continues to deny the allegations and any wrongdoing and says it is settling to avoid uncertainties of lengthy litigation.
An Apple store representative told ABC News Tuesday that the Nike FuelBand is no longer sold.
Under the proposed settlement to which Nike and Apple have both agreed, Nike will provide to people who bought a FuelBand between Jan. 19, 2012, and June 17, 2015, a $15 check or a $25 gift card for each FuelBand they can prove they own redeemable at Nike-owned stores in the U.S., Puerto Rico and through Nike.com. Nike would pay for these costs and attorneys' fees up to $2.4 million, according to the settlement agreement.
A hearing is scheduled for Nov. 4 to determine whether the proposed settlement will be approved.
FuelBand users who agree to the settlement would be required to submit a claim form by Jan. 4, 2016 at NikeFuelBandSettlement.com or submit it via mail. Those who continue to wish to sue Nike or Apple must submit a form to exclude themselves from the settlement class.
Paul Philips, attorney for the plaintiff, told ABC News that both sides of the case "worked diligently to get the matter resolved."
A spokeswoman for Apple declined to comment to ABC News. Nike did not respond to requests for comment from ABC News.