(Breach of Implied Warranty In Violation Of  Cal. Comm. Code § 2314)   (Breach of Express Warranty In Violation Of  Cal. Comm. Code § 2313)  Plaintiff incorporates and realleges, as though fully set forth herein, each of the  paragraphs set forth above.  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page20 of 33 21   (Violation of the Magnuson-Moss Warranty Act  15 U.S.C. § 2301 et seq)   (Violations of Cal. Civ. Code § 1750 et seq.)  Plaintiff incorporates the foregoing allegations as if fully set forth herein.  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page24 of 33 25   (Violations of Cal. Bus. & Prof. Code § 17500 et seq.)  Plaintiff incorporates by reference each and every preceding paragraph as though fully set  forth herein.   (Violations of Cal. Bus. & Prof. Code § 17200 et seq.)  Plaintiff incorporates the foregoing allegations as if fully set forth herein.   21.  Apple designs both the hardware component of the Apple Devices as well as the  operating system (the iOS) that runs each device   22.   The iPhone is the most popular of the three devices. For example, in 2011 and  2012, Apple sold 72 million and 125 million iPhones respectively. Apple sold approximately 11  million and 8 million iPods touches and 32 million and 58 million iPads in the same time period.   23.   The iPod touch is a portable digital music and media player based on Apple’s  proprietary iOS and includes a multi-touch interface and the App Store.   24.   The iPhone combines a mobile phone, an iPod touch, and an internet  communication device into a single hand-held product. The iPhone is therefore more than simply  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page7 of 33 8  a phone and Apple’s marketing of the iPhone has focused not on its ability to make phone calls,  but on the availability and utility of third-party apps. Indeed, since the launch of the App Store,  Apple’s Annual Reports to shareholders have cautioned that “[t]he Company believes decisions  by customers to purchase its hardware products depend in part on the availability of third-party  software applications and services for the Company’s products…with respect to iOS devices, the  Company relies on the continued availability and development of compelling and innovative  software applications, which are distributed through a single distribution channel, the App  Store.”   25.   The iPad is a multi-purpose mobile device. Like the iPhone and the iPod touch,  the iPad is based on the Company’s multi-touch technology and comes installed with the App  Store. The iPhone, iPod touch and the iPad share many of the same apps.   26.   The price of each Apple Device depends on the available memory on the device  measured in gigabytes (GB). Apple sells a locked iPhone starting at $199 for a 16GB phone,  $299 for a 32GB phone, and $399 for a 64GB phone.   27.  Thus, Apple sells additional memory at a premium, telling consumers, “[t]he  more gigabytes you have, the more content you can store on your iPhone – apps, photos, HD  videos, music, movies and more.”   28.  Similarly, Apple charges a premium for additional space on the iPad: $499 for the  16GB iPad, $599 for the 32GB iPad, and $699 for the 64GB iPad. As with the iPhone, Apple  encourages consumers to purchase an iPad with a larger capacity.   29.  Finally, the iPod touch is priced at $199 for 16GB, $299 for 32GB and $399 for  47.   Apple is headquartered in Cupertino, California.   48.   Apple does substantial business in California, with a significant portion of the  proposed Nationwide Class located in California.   49.    Plaintiffs injuries were caused by Apple's wrongful conduct in false advertising  that originated in California. Apple's misleading marketing, promotional activities and literature  were coordinated at, emanate from and are developed at its California headquarters, and all  critical decisions regarding marketing and advertising were made within the State of California.  50.   Plaintiff brings this action on behalf of herself and all persons similarly situated  pursuant to the Federal Rules of Civil Procedure 23(a), 23(b)(1), (b)(2) and (b)(3). The proposed  class is both ascertainable and shares a well-defined community of interest in common questions  of law and fact. Furthermore, this action satisfies the numerosity, commonality, typicality,  adequacy, predominance and superiority requirements. The Class is defined as follows:  All persons and entities who purchased in the United States an Apple   Device for their own use and not for resale, which uses utilizes Apple’s iOS  operating systems 6.0, 6.1.3, 7.0, or 7.0.3. Excluded from the Class are (1)  Defendant; (2) any entity in which Defendant has a controlling interest; (3)  Defendant’s officers, directors, and employees; (4) Defendant’s legal  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page17 of 33 18  representatives, successors, and assigns; and (5) the Court to which this case  is assigned.   51.   Plaintiff does not know the exact number of Class members because such  information is in the exclusive control of Defendant. However, Plaintiff believes that Class  members are sufficiently numerous, most likely in the millions of purchasers, and geographically  dispersed throughout the nation, and that joinder of all Class members is impracticable. The  information as to the identity of the Class members can be substantially determined from records  maintained by Defendant and its agents such as sales records, registration records, warranty  agreements, warranty claim records, and public notification.   52.   Plaintiff’s claims are typical of, and not antagonistic to, the claims of the other  Class members because Plaintiff is an iPhone and iPad owner and by asserting her claims, she  will also advance the claims of all members of the Class who were damaged by the same  wrongful conduct of Apple as alleged herein, and the relief sought is common to the Class.   53.   The common legal and factual questions which do not vary from Class member to  Class member as to the Apple Devices, and which may be determined without reference to  individual circumstances of any Class member include, but are not limited to, the following:  a.   Whether the Apple Maps App contains a design defect;  b.   Whether the Apple Maps App is a manufacturing defect;  c.   Whether the Apple Devices are susceptible to malfunction as a result of such  defect(s);  d.   Whether Apple has breached its express written warranty;  e.   Whether Apple has breached an express written warranty based on representations  it made in marketing materials;  f.   Whether Apple has breached the implied warranty of merchantability;  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page18 of 33 19  g.   Whether Apple’s marketing and descriptions of the Apple Devices were likely to  deceive a reasonable consumer;  h.   Whether Apple knew or should have known that the Apple Devices were  vulnerable to malfunctions;  i.   Whether Apple had a duty to Plaintiff and the Class to disclose the true  nature of the Apple Devices’ mapping defects;  j.   Whether the facts withheld by Apple from Plaintiff and the Class would be  material to a reasonable person;  k.   Whether Apple engaged in unfair competition when it represented that the  Apple Devices and Map Apps had characteristics that it does not actually have;  l.   Whether the Apple Devices fail to perform in accordance with the reasonable  expectations of ordinary consumers;  m.   Whether Plaintiff and the Class are entitled to compensatory damages, and  the amount of such damages; and  n.   Whether Apple should be ordered to make full restitution to Plaintiff and  members of the Class, as well as injunctive relief.   54.   These common questions and others predominate over questions, if any, that  affect only individual members of the Class.   55.   The claims of the Plaintiff are typical of the claims of the Class. There are no  material conflicts with any other member of the Class that would make class certification  inappropriate. Plaintiff and his counsel will fairly and adequately represent the interests of the  Class. Plaintiff has retained attorneys experienced in the prosecution of class actions, including  complex cases and consumer actions, and Plaintiff will prosecute this action vigorously.  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page19 of 33 20   56.   A class action is superior to other available methods for the fair and efficient  adjudication of this controversy because individual litigation of the claims of all Class members  is impracticable. Even if every Class member could afford individual litigation, the court system  could not. It would be unduly burdensome on the courts if individual litigation of numerous  cases would proceed. By contrast, the conduct of this action as a class action, with respect to  some or all of the issues presented in this Complaint, presents fewer management difficulties,  conserves the resources of the parties and of the court system, and protects the rights of each  Class member.   57.   Prosecution of separate actions by individual Class members would create the risk  of inconsistent or varying adjudications, establishing incompatible standards of conduct for  Defendant, and would magnify the delay and expense to all parties and to the court system  resulting from multiple trials of the same complex factual issues.   58.   Injunctive relief is appropriate as to the Class as a whole because Defendant has  acted or refused to act on grounds generally applicable to the Class.   59.   Whatever difficulties may exist in the management of the class action will be  greatly outweighed by the benefits of the class action procedure, including, but not limited to,  providing Class members with a method for the redress of claims that may not otherwise warrant  individual litigation.  60.   Defendant Apple issued written warranties to Plaintiff and the Class wherein  Defendant warranted that its Apple Devices were free of defects in materials and workmanship.   61.   In addition, Plaintiff was exposed to representations made by Apple in its  marketing materials regarding iOS 6 and Apple Maps, e.g., keynote address from Apple  Executive touting the new iOS 6 as a “major initiative” and persistent encouragement by Apple  to stick with its products because “the more our customers use our Maps the better it will get.”  September 28, 2012 Letter from Apple CEO, Tim Cook.   62.  In fact, the Apple Devices at issue are not fit for its advertised purpose of  providing a product that contains a Map function which accurately directs the user to the desired  destination, accurately depicts landmarks, etc. Despite CEO Cook’s September 28, 2012 letter  promising improvements, the Huffington Post and several other media outlets reported just  weeks ago that Apple Maps directed users across an airport runway.15    63.   Apple has had actual notice of the Apple Maps defects by virtue of the media  coverage of the problems (e.g. – The New York Times, Fortune, Wall Street Journal), including  the hundreds of messages posted on technology websites such as MarketWatch.com, and  Gizmodo.com, and by virtue of the filing of this lawsuit. Additionally, as unsophisticated  consumers, Plaintiff and the Class are relieved of any notice requirement, and Apple, who has  superior knowledge of its technology, is estopped from asserting lack of notice as a defense. In  addition, on September 26, 2013, Plaintiffs’ counsel provided separate written notice of the  faulty Apple Maps to Apple, Inc.  15 http://www.huffingtonpost.com/2013/09/25/apple-maps-bad_n_3990340.html  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page21 of 33 22   64.   Defendant has breached its warranty obligations by not agreeing to refund the  purchase price of the Apple Devices to dissatisfied customers and not agreeing to replace without  charge all flawed Apple Maps applications.   65.   Defendant’s breach of the warranty was a substantial factor in causing Plaintiff  and the Class to suffer economic losses and other general, consequential and specific damages,  according to proof.  WHEREFORE, Plaintiff and the Class pray for relief as set forth below.   66.   Plaintiff incorporates and realleges, as though fully set forth herein, each of the  paragraphs set forth above.   67.   Defendant had direct dealings with Plaintiff and the Class through its vast  marketing efforts. As a result of their direct dealings with Defendant, Plaintiff and the Class  purchased Apple Devices from Apple and/or Apple-authorized retailers. Notwithstanding this,  privity is not required because Plaintiff and the Class are the intended beneficiaries of  Defendant’s implied warranties.   68.   By operation of Cal. Com. Code § 2314, Defendant impliedly warranted that its  devices are merchantable, fit for its ordinary purpose, and free of defects.   69.   In fact, the devices are not in merchantable condition because the Map application  is defective as described above. The iPhone 4 cannot perform its ordinary purpose because Apple  Maps does not accurately direct the user to the desired destination, does not accurately depict  landmarks, etc., when used in the ordinary course and for the ordinary purpose for which devices  were sold.  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page22 of 33 23   70.   Defendant breached the warranties by undertaking the wrongful acts herein  alleged. The Apple Devices and, specifically, the pre-installed Apple Maps are substantially  likely to malfunction before the end of their useful life.   71.   As a result of Defendant’s breach of the warranty, Plaintiff and the Class have  suffered economic losses and other general, consequential and specific damages, including the  amount paid for their defective Apple Devices, according to proof.  WHEREFORE, Plaintiff and the Class pray for relief as set forth below.  72.   Plaintiff incorporates and realleges, as though fully set forth herein, each of the  paragraphs set forth above.   73.   Plaintiff and Class members are “consumers” within the meaning of the  Magnuson-Moss Act.   74.   Defendant is a “supplier” and “warrantor” within the meaning of the Magnuson-  Moss Act.   75.   The Apple Devices are a “consumer product” within the meaning of the  Magnuson-Moss Act.   76.   Defendant’s written affirmations of fact, promises and/or descriptions as alleged  herein are each a “written warranty” as to the Apple Maps functionality and accurate  performance and/or there exists an implied warranty for the sale of such products within the  meaning of the Magnuson-Moss Act.  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page23 of 33 24   77.   For the reasons detailed above, Defendant breached these express and implied  warranties, as the Apple Devices did not perform as Defendant represented or were not fit for  their ordinary use. Defendant Apple has refused to remedy such breaches, and its conduct caused  damages to Plaintiff and member of the Class.   78.   The amount in controversy of Plaintiff’s individual claims meets or exceeds the  sum of $25. The amount in controversy of this action meets or exceeds the sum or value of  $50,000 (exclusive of interest and costs) computed on the basis of all claims to be determined in  this suit.   79.   As Defendant has refused all previous requests, resorting to any informal dispute  procedure and/or affording Defendant another opportunity to cure these breaches of warranties is  unnecessary and/or futile. Any remedies available through any informal dispute settlement  procedure would be inadequate under the circumstances. Any requirement under the Magnuson-  Moss Act or otherwise that Plaintiff resorts to any informal dispute settlement procedure and/or  afford Defendant a reasonable opportunity to cure the breach of warranties described above is  excused and/or has been satisfied.   80.   Plaintiff seeks to revoke her acceptance of the defective Apple Devices, or, in the  alternative, seek all damages, including diminution in value of her Apple Devices in an amount  to be proven at trial. Class members are entitled to recover damages, specific performance, costs,  attorneys’ fees, rescission, and/or other relief as is deemed appropriate.  81.   In violation of Civil Code, §1750, et seq., Apple has engaged and is engaging in  unfair and deceptive acts and practices in the course of transactions with Plaintiff, and such  transactions are intended to and have resulted in sales of any merchandise.   82.   In violation of the CLRA, Apple has engaged, and is engaging, in unfair and  deceptive acts and practices in the course of transaction with Plaintiff, and such transactions are  intended to and have resulted in the sale of goods to consumers.   83.   Plaintiff and members of the Class are consumers as that term is used in the  CLRA Act because they sought or acquired Apple’s goods (the Apple Devices) for personal,  family, or household purposes. Apple’s past and ongoing acts and practices include but are not  limited to: Apple’s representations that its goods were of a particular standard, quality, and  grade, when in fact, they were of another, in violation of Civil Code, §1770(a)(7).   84.   Specifically, as described herein, Apple has made the following representations,  expressly or by implication to Plaintiff and other members of the Class about the Apple Devices:  (i) that Apple designed the Apple Devices to safely and reliably download and update its apps,  (ii) that the App Store does not permit apps that violate its developer guidelines to be sold or to  be made available for free through the App Store, (iii) that “Apple takes precautions – including  administrative, technical, and physical measures – to safeguard [purchaser’s] personal safety,”  and, (iv) that Apple Maps will improve as more consumers use it.   85.   These representations were materially misleading.   86.   Plaintiff and members of the Class would not have purchased the Apple Devices  and/or would not have paid as much for them if Apple disclosed that the above representations  were false and if there were aware that Apple Maps would not provide public transit directions,  would mislabel restaurants, landmarks, streets, etc., and provide inaccurate directions.   Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page25 of 33 26   87.   Apple’s violations of the CLRA have caused damage to Plaintiff and the other  Class members and threaten additional injury if the violations continue. This damage includes  the injuries and losses set forth above.   88.   Under §1782 of the CLRA, Apple has received notice in writing by certified mail  of the particular violations of §1770 of the CLRA from Plaintiff on behalf of all Class members,  demanding Defendant offer to resolve the problems associated with the actions detailed above  and give notice to all affected consumers of the intent to so act.   89.   Thirty days have passed since Plaintiff sent the CLRA letter, registered mail  return receipt requested, and Apple has failed to take the actions required by the CLRA on behalf  of all affected consumers. Plaintiff and the Class are therefore entitled to all forms of relief  provided under § 1780 of the CLRA.   90.   Based on its knowledge or reckless disregard of the facts as detailed herein, Apple  was guilty of acting with malice, oppression or fraud.  91.   Plaintiff and members of the Class have suffered injury in fact and have lost  money or property as a result of Apple’s violation of California Business & Professions Code  §17500, et seq.   92.   Apple’s acts and practices as described herein have deceived and/or are likely to  deceive members of the Class and the public. Apple has repeatedly advertised that its products  were safe and secure. Apple has furthered assured consumers that it closely monitors the apps  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page26 of 33 27  available in the App Store. Instead, Apple has left its customers vulnerable to all hazards which  result from inaccurate directions, and flawed maps.   93.   By its actions, Apple is disseminating uniform advertising concerning its products  and services, which by its nature is unfair, deceptive, untrue, or misleading within the meaning  of California Business & Professions Code §17500, et seq. Such advertisements are likely to  deceive, and continue to deceive, the consuming public for the reasons detailed above.   94.   The above-described false, misleading, and deceptive advertising Apple  disseminated continues to have a likelihood to deceive in that Apple has failed to disclose that its  mapping application does not provide public transit directions, mislabels restaurants, landmarks,  streets, etc., and provides inaccurate directions.   95.   In making and disseminating the statements alleged herein, Apple should have  known its advertisements were untrue and misleading in violation of California Business &  Professions Code §17500, et seq. Plaintiff and members of the Class based their decisions to  purchase the Apple Device in substantial part on Apple’s misrepresentations and omitted  material facts. The revenues to Apple attributable to products sold in those false and misleading  advertisements amount to millions of dollars. Plaintiff and the Class were injured in fact and lost  money or property as a result.   96.   The misrepresentations and non-disclosures by Apple of the material facts  detailed above constitute false and misleading advertising and therefore constitute a violation of  California Business & Professions Code § 17500, et seq.   97.   As a result of Apple’s wrongful conduct, Plaintiff and the Class request that this  Court enjoin Apple from continuing to violate California Business & Professions Code § 17500,  et seq.  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page27 of 33 28  98.   In violation of California Business and Professions Code, §17200 et seq., (“Unfair  Competition Law”). Apple’s conduct in this regard is ongoing and includes, but is not limited to,  statements made by Apple and Apple’s omissions, including as set forth above.   99.   Plaintiff, on behalf of herself and on behalf of each member of the Class, seeks  restitution, injunctive relief, and other relief allowed under the Unfair Competition Law.  100.  Apple’s business acts and practices are unlawful, in part, because they violate  California Business and Professional Code, §1750, et seq., which prohibits false advertising, in  that they were untrue and misleading statements relating to Apple’s provision of goods and with  the intent to induce consumers to enter into obligations relating to such goods, and regarding  which statements Apple knew, or which by exercising reasonable care should have known, were  untrue and misleading.  101.  Apple’s business acts and practices are also unlawful in that, as set forth herein,  they violate the Consumer Legal Remedies Act, California Civil Code, §1750, et seq.  102.  Plaintiff reserves the right to identify additional provisions of the law violated by  Apple as further investigation and discovery warrants.  103.  Apple is therefore in violation of the unlawful prong of the Unfair Competition  Law.  104.  Apple’s business acts and practices are also unfair because they have caused harm  and injury-in-fact to Plaintiff and members of the Class and for which Apple has no justification  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page28 of 33 29  other than to increase, beyond what Apple would have otherwise realized, its market share and  revenue from sale of the Apple Devices.  105.  Apple’s conduct lacks reasonable and legitimate justification in that it has  benefited from such conduct and practices while Plaintiff and members of the Class have been  misled as to the nature and integrity of the Apple Devices and have lost money, including the  purchase price of the Apple Device and/or the difference of the inflated price and the price Apple  should have charged for a product that fully disclosed the true nature of the Apple Devices.  106.  Apple’s conduct offends California public policy, the Consumer Legal Remedies  Act, and/or the state constitutional right of privacy.  107.  In addition, Apple’s modus operandi constitutes a sharp practice in that Apple  knew and should have known that consumers care about the accuracy of maps, but are unlikely  to be aware or/and able to detect the means by which Apple and/or its licensors were conducting  themselves in a manner adverse to its commitments and its users’ interests. Apple is therefore in  violation of the unfair prong of the Unfair Competition Law.  108.  Apple’s acts and practices were also fraudulent within the meaning of the UCL  because they were likely to mislead members of the public.  109.  While Apple represented at all times that, the Apple Devices were safe and  secure; in actuality, the Maps application guided Plaintiffs to unknown locations. Apple did not  inform purchasers, like Plaintiff, that their Apple Devices may be vulnerable to mapping  fallacies such as: mislabeled restaurants, landmarks, streets, etc., and publishing inaccurate  directions, but instead, represented at all relevant times that “Apple takes precautions – including  administrative, technical, and physical measures – to safeguard [purchaser’s] personal safety.”  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page29 of 33 30  110.  By engaging in the above-described acts and practices, Apple has committed one  or more acts of unfair competition within the meaning of the UCL. Plaintiffs and members of the  Class have suffered an injury-in-fact and have lost money and property, including, but not  limited to, the expected utility and performance of their Apple Devices, the purchase price of  their Apple Devices, and/or the difference between the price Class members paid and the actual  worth of the product has Apple disclosed the true nature of the Apple Devices.  111.  Apple had a duty to disclose the material content and security characteristics of  the Apple Devices and their operations because (i) it knew or should have known about these  characteristics at the time that Plaintiff and other members of the Class purchased their Apple  Devices because Apple created the Apple Devices and the iOS that ran these devices; (ii) had  exclusive knowledge of material facts that were not known to Plaintiff; and (iii) made  representations regarding the Apple Devices’ administrative, technical, and physical measures  taken to safeguard [purchaser’s] personal safety but that Apple Maps would lead consumers to  unknown, sometimes dangerous places.  112.  Plaintiff and members of the Class were deceived by Apple’s representations and  cultivation of its reputation for security and innovation and reasonably relied on Apple’s  representations and omissions as described herein and were consequently injured as alleged  herein.  113.  Plaintiff and members of the Class have suffered injuries as a direct and  proximate result of Apple’s unlawful, unfair and fraudulent business practices.  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page30 of 33 31  A.  Background of Apple’s Product Line.......................................................................... 7   B.  Apple’s defection from Google launched a disaster for Apple’s Maps……...............9   C.  Apple’s Mapping Application is clearly Defective.....................................................11   D.  Apple Has Failed To Honor Its Warranties ...............................................................15   E.  Apple’s Misrepresentations........................................................................................16   A.  Background of Apple’s Product Line   Negligent Misrepresentation  Plaintiff incorporates by reference each and every preceding paragraph as though fully set  forth herein.   114.  Apple claims to review each application before offering it to its users, purports to  have implemented app standards, and claims to have created measures to protect the personal  safety of its customers.   115.  However, unbeknownst to consumers such as Plaintiff, Apple failed to properly  monitor app makers and to provide accurate mapping information to Plaintiffs. In making these  representations to Plaintiff and the Class, Apple intended to induce Plaintiff and the Class to  purchase the Apple Devices.  116.  At all times herein, Plaintiff and the Class were unaware of the falsity of Apple’s  statements. Plaintiff and the Class reasonably acted in response to the statements made by Apple  when they purchased an Apple device and updated the operating systems.   117.  As a proximate result of Apple’s negligent misrepresentations, Plaintiff and Class  members purchased Apple Devices.   VI. CLASS ACTION ALLEGATIONS......................................................................................17   VII.  CAUSES OF ACTION .......................................................................................................20   VIII.  DEMAND FOR RELIEF...................................................................................................31  Case5:13-cv-05332-EJD   Document1   Filed11/15/13   Page2 of 33 3  Plaintiff Nancy Romine Minkler (“Plaintiff”), brings this action on behalf of herself and  on behalf of all others similarly situated in the United States against Defendant APPLE, INC.  (hereinafter “Apple” or “Defendant”). Plaintiff’s allegations are made on information and belief  except as to allegations regarding herself which are based on personal knowledge. Plaintiff  alleges as follows:  I. 