United States District Court, N.D. California
ORDER DENYING MOTION FOR CLASS CERTIFICATION RE FALSE
ADVERTISING LAW AND RELATED CLAIMS RE: ECF NO. 802
TIGAR United States District Judge.
a putative class action against Apple for alleged invasions
of privacy through applications on Apple devices. Before the
Court is Plaintiffs' Motion for Class Certification
Regarding False Advertising Law and Related Claims. ECF No.
802. The Court will deny the motion.
a putative class action challenging Apple's alleged
misrepresentations regarding the security features on certain
Apple devices. See Second Consolidated Amended
Complaint (“SCAC”), ECF No. 478. Plaintiffs
allege that, between July 10, 2008 and February 2012, they
owned one or more of three Apple products - the iPhone, iPad,
and/or iPod touch (collectively “iDevices”).
Id. ¶ 2. They further allege that Apple engaged
in a mass marketing campaign in which it “consciously
and continuously misrepresented its iDevices as secure, and
that the personal information contained on iDevices -
including, specifically, address books - could not be taken
without their owners' consent.” Id. ¶
3. Plaintiffs and the putative class allege they overpaid for
their iDevices in reliance on Apple's misrepresentations.
addressing the merits of Plaintiff's legal contentions,
the Court first briefly discusses how iDevices store contacts
data, how iDevice software applications allegedly
misappropriated this data, the role of Apple's App Store,
and the two Apple security features allegedly designed to
protect against misappropriation of contact data.
iDevice comes pre-loaded with a “Contacts” mobile
software application (or “App”), which iDevice
owners may use as an address book to input and store the
following information about the owner's contacts:
(1) first and last name and phonetic spelling of each, (2)
nickname, (3) company, job title and department, (4)
address(es), (5) phone number(s), (6) e-mail address(es), (7)
instant messenger contact, (8) photo, (9) birthday, (10)
related people, (11) homepage, (12) notes, (13), ringtone,
and (14) text tone.
Id. ¶ 54, 55. The “information in the
Contacts App is among the most private and personal of such
information a user maintains on an iDevice. The address book
data reflects the connections, associations, and
relationships that are unique to the owner of the
iDevice.” Id. ¶ 56. The data “is
highly personal and private, ” and “is not
shared, is not publicly available, is not publicly
accessible, and is not ordinarily obtainable by a third party
unless the owner physically relinquishes custody of his or
her iDevice to another individual.” Id.
Apps' Use of Contact Information
to Plaintiffs, notwithstanding Apple's representations
about the security of its iDevices, Apple knew that the
devices permitted the Defendants' Apps “to secretly
upload, store, and in some cases disseminate
[Plaintiffs'] personal and private address books as
stored in the ‘Contacts' App from the iDevices
without [Plaintiffs'] knowledge or consent.”
Id. ¶ 2. In fact, Plaintiffs allege, Apple
provided its “assistance and cooperation” to the
App Defendants in accessing and misusing iDevice owners'
address-book information. Id. And despite
Apple's “unique knowledge that its iDevices were
not as secure as represented, ” Apple
“consistently and deliberately failed to reveal its
products' security flaws to consumers . . .”
Id. ¶ 4. Because of “Apple's conduct,
Plaintiffs and millions of other people purchased iDevices
reasonably believing that they were secure when, in fact,
they are not, and then downloaded Apps, including the Apps
manufactured by App Defendants, and suffered the unexpected
and unauthorized theft of their personal data.”
Id. Plaintiffs allege that they would not have paid
as much for their iDevices had they known of the devices'
security flaws. Id. ¶¶ 142, 148, 154, 161,
168, 174, 180, 186, 192, 197, 203, 210, 216, 223, 230.
The App Store and App Development
offers Apps solely through its App Store, which Apple
launched in July 2008. Id. ¶ 39. “Apple
has exclusive control over what Apps are available in the App
Store, and the iDevices are designed to only accept software
downloads from the App Store . . .” Id.
According to Plaintiffs, “[t]he App Store and the
availability of numerous Apps to perform different functions
are key parts of Apple's marketing strategy and the
popularity of the iDevices.” Id. ¶ 40. In
order to offer an App through the App store, “a
third-party developer must be registered as an ‘Apple
Developer, ' agree to the iOS Developer Program License
Agreement with Apple, and pay a $99 yearly registration
fee.” Id. ¶ 44. To further control the
Apps offered through its store, “Apple provides
third-party developers with review guidelines, and conducts a
review of all applications submitted for inclusion in the App
Store- for compliance with these documents.”
Id. In addition, Apple provides a host of tools, as
well as support services and guidelines to third-party
developers who are licensed to provide Apps through the App
Store. Id. ¶¶ 44, 45, 49, 53. The result
of these circumstances, according to Plaintiffs, is that
“all iDevice Apps were built, in part, by Apple.”
Id. ¶ 46.
Sandboxing and the Curated App Store
allege that Apple's focus on privacy was a
“cornerstone of its marketing strategy” for
iDevices. Id. ¶ 76. To support this assertion,
Plaintiffs point to various statements Apple made during the
Class Period. See id. ¶ 76(i)-(xxix); ¶
76(xxiii) (“We have created strong privacy protections
for our customers . . . . Privacy and trust are vitally
important.”); ¶ 76(xxv) (“Protecting
customer privacy is a key feature of all App Store
transactions.”); ¶ 76(xxvii) (“Apple will
continue to be one of the leaders in strengthening personal
information security and privacy.”).
represented to the marketplace that it had implemented two
security features or practices intended to prevent
third-party apps from taking private user data including
Contacts App data from iDevices without the owner's
consent. ECF No. 802 at 9. These two features were known as
“sandboxing” and the “curated” App
Store. Id. “Sandboxing” technology was
designed to prevent apps from accessing data inside other
apps, including the Contacts app. Id. at
This security feature was advertised as a way iDevices
protected user data, including data stored in the Contacts
App, from misappropriation by third party apps. Id.
Apple advertised that the App Store was “curated”
so that Apps were only available for download if they met
certain privacy standards. Id. at 14. Apple made
specific statements regarding these security features.
See ECF No. 478 ¶ 77(i)-(v); id.
¶ 77(i) (“[A]n Apple representative stated that
Apple is ‘putting . . . a number of different things in
place, from sandboxing to other . . . technical things you
want to do to protect applications and the [iPhone]
system.'”); id. ¶ 77(ii)
(“Applications on the device are ‘sandboxed'
so they cannot access data stored by other
guidelines provide that “Apps ‘cannot transmit
data about a user without obtaining the user's prior
permission and providing the user with access to information
about how and where the data will be used.'”
Id. ¶ 47. And “Apple has sole discretion
over the App approval process and may reject any App at any
time and for any reason, ” including a violation of the
terms and conditions of the licensing agreement, providing
Apple with inaccurate information, or if Apple learns the App
“violates, misappropriates, or infringes the rights of
a third party.” Id.
action began as separate class actions filed in California
and Texas against Apple and multiple App Defendants. The four
actions were consolidated here, and Plaintiffs filed their
Consolidated Amended Complaint (“CAC”), ECF No.
362, on September 3, 2013.
and App Defendants filed several motions to dismiss the CAC.
ECF Nos. 393, 394, 395, 396. On May 14, 2014, the Court
granted the motions in part. ECF No. 471. The Court dismissed
Plaintiffs' false and misleading advertising, consumer
legal remedies/misrepresentation, deceit, Unfair Competition
Law (“UCL”), and conversion claims, which
Plaintiffs subsequently amended in their SCAC. Id.
The Court denied the motions to dismiss Plaintiffs'
invasion of privacy (intrusion upon seclusion) claim.
then filed their SCAC. ECF No. 478. In the SCAC, Plaintiffs
alleged conversion and invasion of privacy (intrusion upon
seclusion) claims against all Defendants, and the following
claims against Apple alone: (1) violation of California's
False and Misleading Advertising Law (“FAL”),
Business and Professions Code § 17500, et seq.;
(2) violation of California's Consumer Legal Remedies Act
(“CLRA”), Civil Code § 1750, et
seq.; (3) deceit, California Civil Code § 1709,
et seq.; and (4) violation of California's UCL,
Business and Professions Code § 17200, et seq.
ECF No. 478 ¶¶ 243-323. Plaintiffs requested
certification of a class; an injunction prohibiting
Defendants from continuing the challenged conduct; actual,
compensatory, statutory, presumed, punitive, and/or exemplary
damages; declaratory relief; restitution; the imposition on
Defendants of constructive trusts; and fees, costs, and
interest. Id. at 78-79.
February 2016, Plaintiffs filed a motion for class
certification against Path and Apple for Plaintiffs'
intrusion upon seclusion claim against Path and for aiding
and abetting against Apple, ECF No. 651, which was granted in
part and denied in part, ECF No. 761.
August 23, 2016, Plaintiffs filed the instant motion for
class certification. ECF No. 802. Plaintiffs seek to certify
the following class against Apple with regard to
Plaintiffs' FAL, CLRA, deceit, and UCL claims:
All United States residents who, prior to February 8, 2012
(the “Class Period”) purchased an iDevice of the
following models: iPhone 3G, iPhone 3GS, iPhone 4, iPhone 4s,
iPad, iPad 2 or the second through fourth generations of the
iPod Touch (the “Class Devices”).
Id. at 9. Apple opposes the motion. ECF No.
Court has jurisdiction over this case pursuant to the Class
Action Fairness Act. This is a class action in which a member
of the class of plaintiffs is a citizen of a state different
from the defendant, there are more than 100 class members
nationwide, and the matter in controversy exceeds the sum of
$5 million, exclusive of interest and costs. 28 U.S.C. §
REQUESTS FOR JUDICIAL NOTICE
turning to the merits of the motion to dismiss, the Court
resolves the Defendants' requests for judicial notice.
Plaintiffs ask the Court to take judicial notice of 42
different documents that include news articles, videos,
webpages, and a patent. See ECF No. 803. The request
a general rule, we may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion.”
United States v. Corinthian Colleges, 655 F.3d 984,
998-99 (9th Cir. 2011) (internal quotation marks and
citations omitted). Pursuant to Federal Rule of Evidence
201(b), however, “[t]he court may judicially notice a
fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court's
territorial jurisdiction; or (2) can be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned.” The Court may properly take
judicial notice of materials attached to the complaint and of
matters of public record. Lee v. City of Los
Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). A court
“must take judicial notice if a party requests it and
the court is supplied with the ...