United States District Court, N.D. California, San Jose Division
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO
DISMISS THE SELECTED CLAIMS IN PLAINTIFFS' THIRD AMENDED
CLASS ACTION COMPLAINT RE: DKT. NO. 87
H. KOH United States District Judge.
bring this putative class action against Defendant Apple,
Inc. (“Apple” or “Defendant”), and
allege violations of various state consumer fraud statutes,
common law fraud, and breach of express and implied warranty.
See ECF No. 86 (Third Amended Class Action
Complaint, or “TACC”). Before the Court is
Defendant's motion to dismiss the TACC. ECF No. 87
(“Mot.”). Having considered the submissions of
the parties, the relevant law, and the record in this case,
the Court hereby GRANTS in part and DENIES in part
Defendant's motion to dismiss.
is the designer, manufacturer, marketer, and seller of the
iPhone smartphone. TACC ¶ 25. The iPhone utilizes a
touchscreen for users to interact with the device, and use of
the touchscreen is required to send text messages, capture
video, browse the internet, and access applications, among
other functions. Id. ¶¶ 26, 28. Defendant
released the iPhone 6 and iPhone 6 Plus on September 19,
2014. Id. ¶ 25. The iPhone 6 and 6 Plus both
have a larger touchscreen than Defendant's prior iPhone
models. Id. ¶ 30.
to Plaintiffs, the iPhone 6 and 6 Plus “suffer from a
material manufacturing defect that causes the touchscreen to
become unresponsive to users' touch inputs”
(hereinafter, the “touchscreen defect”).
Id. ¶ 43. Plaintiffs allege that the
touchscreen defect is caused by a defect in the iPhone's
external casing. Id. ¶ 45. Specifically,
“[t]he materials used in the iPhone's external
casing are insufficient and inadequate to protect their
internal parts in light of reasonable and foreseeable use by
consumers.” Id. Because of this, the internal
components of the iPhones are exposed to “increased
external stress and physical harm” when a user uses the
iPhone. Id. ¶ 50. This increased external
stress and physical harm causes the solder balls within the
iPhone, which adhere the iPhone's touchscreen controller
chips (“touch IC chips”) to the iPhone's
logic board, to “crack and start to lose contact with
the logic board, ” which interrupts the electrical
contact between the touch IC chips and the logic board.
Id. ¶ 52-53. As a result, “the iPhones
are incapable of recognizing when a user is touching the
allege that the “weakness in the external casing of the
iPhones” that causes the touchscreen defect also led to
a different iPhone problem in which “numerous users
were reporting that their iPhones were bending in the days
immediately following the release of the iPhones.”
Id. ¶ 54. Plaintiffs refer to this
“widely publicized” defect as
“BendGate.” Id. ¶ 54. Plaintiffs
allege that the “iPhones do not need to be visibly bent
for the touchscreen defect to occur because the decreased
strength and durability in the external casing causes the
soldering on the touch IC chips to fail even if the casing
does not permanently bend or deform.” Id.
state that previous versions of the iPhones
“implemented other logic board designs that would
mitigate, but not prevent, the Touchscreen Defect from
occurring.” Id. ¶ 59. Specifically,
previous iPhone 5 designs incorporated either a “metal
shield” or an “underfill” that provided
protection to the logic board. Id. ¶ 60-61. By
contrast, the iPhone 6 and 6 Plus “do not incorporate
underfill or a shield over the logic board.”
Id. ¶ 62.
allege that Apple knew about the touchscreen defect at the
time that Apple released the iPhone on September 19, 2014.
According to Plaintiff, a consumer posted on Apple's
website about “iPhone 6 touchscreen problems” on
September 18, 2014, ” which is the day before the
iPhone 6 and 6 Plus were released to the public. Id.
¶ 54. Similarly, on November 22, 2014, a user posted a
thread on Apple's website that their iPhone was not
registering their touches. Id. ¶ 66. Plaintiff
alleges that other consumers responded to these threads and
indicated that they experienced similar issues. Id.
¶¶ 66-67. Plaintiffs allege that “[t]here are
hundreds, if not more, complaints regarding the Touchscreen
Defect on Apple's website.” Id. ¶ 68.
Plaintiffs also allege that “[t]here are also numerous
complaints on third-party websites detailing consumers'
experience with the Touchscreen Defect and Apple's
failure to remedy the Touchscreen Defect.” Id.
Plaintiffs allege that “Apple conducts extensive
pre-release durability testing, ” including “five
methods of testing the iPhones” prior to release.
Id. ¶ 71. Specifically, “Apple uses a 
‘three-point bending test' to test the iPhone's
ability to handle reasonable force;”  “a
‘pressure-point cycling test' that expands
substantial force on the iPhones' display and
casing;”  “‘torsion testing, '
whereby an Apple engineer takes an iPhone and sits down
thousands of times;” and  “real-life user
studies.” Id. ¶¶ 72-76. Plaintiffs
allege that, “[t]hrough this extensive pre-release
testing that specifically evaluated the iPhones'
durability, Apple knew or should have known of the
Touchscreen Defect.” Id. ¶ 77. Plaintiffs
also allege that Apple's “decision to forego
protective casings and underfills on the iPhones would have
immediately alerted [Apple] to the failure of the internal
components of the iPhones, including the touch IC
chips.” Id. ¶ 77.
September 25, 2014, shortly after the release of the iPhone 6
and 6 Plus, Apple issued a statement regarding the durability
and performance of the iPhone 6 Plus. Id. ¶ 79.
This statement was in response to “BendGate.”
Id. ¶ 79. Specifically, Apple stated:
Our iPhones are designed, engineered, and manufactured to be
both beautiful and sturdy. iPhone 6 and iPhone 6 Plus feature
a precision engineered unibody enclosure constructed from
machining a custom grade of 6000 series anodized aluminum,
which is tempered for extra strength. They also feature
stainless steel and titanium inserts to reinforce high stress
locations and use the strongest glass in the smartphone
industry. We chose these high-quality materials and
construction very carefully for their strength and
durability. We also perform rigorous tests throughout the
entire development cycle including 3-point bending, pressure
point cycling, sit, torsion, and user studies. iPhone 6 and 6
Plus meet or exceed all of our high quality standards to
endure everyday, real life use.
With normal use a bend in iPhone is extremely rare and
through our first six days of sale, a total of nine customers
have contacted Apple with a bent iPhone 6 Plus. As with any
Apple product, if you have questions please contact Apple.
Id. ¶ 79.
allege that the above statement is false because the iPhones
are not “sturdy” or durable. According to
Plaintiffs, Apple could have alerted consumers about the
touchscreen defect, but Apple failed to do so. Id.
November 18, 2016, Apple announced a customer service program
related to the touchscreen defect called the
“Multi-Touch Repair Program.” Id. ¶
119. Prior to the Multi-Touch Repair Program, Apple charged
approximately $349 for a refurbished iPhone when a consumer
complained of the touchscreen defect outside of Apple's
warranty. Id. Through Apple's Multi-Touch Repair
Program, Apple has offered to repair consumers' devices
for $149 if the consumers' iPhone is otherwise working,
and the screen is not broken. Id. Through the
program, Apple also offers to reimburse consumers for amounts
previously paid over $149. Id. ¶ 120. According
to Plaintiffs, Apple's repair pursuant to the program is
to “simply swap [the iPhone] out for refurbished
phones, ” and the refurbished phones experience the
same touchscreen defect. Id. ¶ 122.
August 27, 2016, Plaintiffs Thomas Davison, Jun Bai, and Todd
Cleary filed a putative class action complaint against
Defendant that alleged causes of action under (1)
California's Consumer Legal Remedies Act
(“CLRA”), Cal. Civ. Code § 1750; (2) Unfair
Competition Law (“UCL”), Cal Bus. & Prof.
Code § 17200; (3) False Advertisement Law
(“FAL”), Cal. Bus. & Prof. Code § 17500;
(4) common law fraud; (5) negligent misrepresentation; (6)
unjust enrichment; (7) breach of implied warranty; (8)
violation of the Magnusson-Moss Warranty Act
(“Magnusson-Moss Act”), 15 U.S.C. § 2301;
and (9) violation of the Song-Beverly Consumer Warranty Act
(“Song-Beverly Act”), Cal. Civ. Code §
17290. See ECF No. 1.
October 7, 2016, Plaintiffs filed a First Amended Class
Action Complaint that added several named Plaintiffs and
added causes of action under the consumer fraud statutes of
Illinois, New Jersey, Florida, Connecticut, Texas, Colorado,
Michigan, New York, and Washington. See ECF No. 20.
On December 2, 2016, Plaintiffs filed a Second Amended Class
Action Complaint (“SACC”), which added a Utah
Plaintiff and a cause of action under Utah's consumer
fraud statute. Plaintiffs sought to represent a Nationwide
Class of “All persons or entities in the United States
that purchased an Apple iPhone 6 or 6 Plus.”
Alternatively, Plaintiffs sought to represent state
the breadth of the Plaintiffs' action, the parties agreed
at the November 30, 2016 initial case management conference
to each select 5 causes of action-for a total of 10 causes of
action-to litigate for purposes of an initial round of
motions to dismiss. See ECF No. 44. On December 5,
2016, the parties selected (1) New Jersey Consumer Fraud Act
(“NJCFA”), N.J. Stat. Ann. § 56:8-1; (2)
Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”), Fla. Stat. § 501.201; (3)
Washington Consumer Protection Act (“WCPA”),
Wash. Rev. Code § 19.86.010; (4) Illinois Consumer Fraud
and Deceptive Trade Practices Act (“ICFDTPA”),
Ill. Comp. Stat ¶ 505; (5) Texas Deceptive Trade
Practices Act (“TDTPA”), Tex. Bus. & Com.
Code ¶ 17.41; (6) Colorado Consumer Protection Act
(“CCPA”), Colo. Rev. Stat. § 6-1-105; (7)
common law fraud; (8) breach of express warranty; (9) breach
of implied warranty; (10) Magnusson-Moss Act. See
ECF No. 44, at 1-2. The parties did not select any California
statutory claims. See id.
January 6, 2017, Defendant filed a motion to dismiss the
SACC. See ECF No. 54. On February 3, 2017,
Plaintiffs filed an opposition. ECF No. 58. On February 17,
2017, Defendant filed a Reply. ECF No. 64.
March 14, 2017, the Court dismissed all 10 of the selected
claims with leave to amend. See ECF No. 84;
Davidson v. Apple, Inc., 2017 WL 976048 (N.D. Cal.
Mar. 14, 2017). As an initial matter, the Court noted that
the Court would defer the choice of law inquiry until a later
state of the proceedings, when the choice of law issue had
been properly briefed by the parties and when the facts of
the case were more fully developed. Id. Nonetheless,
the Court noted that the parties had selected common law
claims to litigate for purposes of the motion to dismiss, but
the parties failed to specify which states' common law
applied to the selected common law claims, and the
parties' motion to dismiss briefing failed to set forth
the elements of the common law causes of action under the
different states at issue. Id. at *4. Indeed, the
parties largely relied on California common law-even though
the parties did not select any California statutes to
litigate-and the parties failed to address salient
differences, if any, under the common law of the different
states at issue. Id. Accordingly, the Court stated
that, for purposes of resolving Defendant's motion to
dismiss the selected claims in the SACC, the Court would
respond to the arguments raised by the parties, but the Court
would not “apply the common law of other states without
briefing.” Id. The Court ordered Plaintiffs to
select one state's common law for purposes of litigating
Plaintiffs' breach of express and implied warranty
claims, and ordered Defendant to select one state's
common law for purposes of litigating Plaintiffs'
selected common law fraud claim. Id. 
Court then turned to resolving Defendant's motion to
dismiss the SACC. First, the Court held that Plaintiffs had
adequately alleged Article III standing to bring claims for
fraud. Id. at *5. However, the Court held that
Plaintiffs had not adequately alleged Article III standing to
seek an injunction because Plaintiffs failed to allege any
intent to purchase an iPhone again. Id. at *6-7.
Moreover, although Plaintiffs raised the existence of
Apple's Multi-Touch Repair Program for the first time in
their opposition, Plaintiffs did not allege in their SACC any
intent to participate in Apple's Multi-Touch Repair
program, and thus Plaintiffs failed to allege that
participation in Apple's program conferred Article III
standing on Plaintiffs to seek an injunction. Id. at
*7. The Court thus granted Apple's motion to dismiss to
the extent that Plaintiffs sought injunctive relief.
Court next addressed Plaintiffs' claims for fraud under
the (1) NJCFA; (2) FDUTPA; (3) WCPA; (4) ICFDTPA; (5) TDTPA;
(6) CCPA; and (7) common law. For all of these claims,
Plaintiffs alleged both affirmative misrepresentation
theories and fraudulent concealment theories. The Court held
that, for all of Plaintiffs' claims for fraud, Plaintiffs
had failed to meet Rule 9(b)'s heightened pleading
requirements. First, with regards to Plaintiffs' claims
premised on an affirmative misrepresentation theory, the
Court noted that Plaintiffs' SACC referred to the content
of only Defendant's September 25, 2014 statement
regarding “BendGate.” However, Plaintiffs failed
to allege that any Plaintiffs were exposed to
Defendant's September 25, 2014 statement. Thus, the Court
held that Plaintiffs had failed to plead with particularity
any fraud claim premised on affirmative misrepresentations
because Plaintiffs did not allege any affirmative
statement to which Plaintiffs were exposed or reviewed.
with regards to Plaintiffs' claims premised on a
fraudulent omission theory, the Court held that Plaintiffs
had failed to plead with particularity any fraud claim
premised on fraudulent omissions because Plaintiffs had
failed to plead “that they reviewed or were exposed to
any information, advertisements, labeling, or
packaging by Defendant, ” and thus Plaintiffs had
failed to plead that they encountered or were exposed to
any material through which Defendant could have made
a fraudulent omission. Id. Accordingly, the Court
granted Defendant's motion to dismiss Plaintiffs'
claims for fraud under the NJCFA, FDUTPA, WCPA, ICFDTPA,
TDTPA, CCPA, and common law. Id. at *10.
the Court turned to Plaintiffs' warranty claims. The
Court applied California law to Plaintiffs' warranty
claims because the parties briefed only California law.
Id. The Court held that, with regards to
Plaintiffs' breach of express warranty claim, Plaintiffs
had failed to state a claim because Plaintiffs alleged only a
defect in the iPhone's design, and Apple's express
warranty did not cover defects in design. Id.
Moreover, the Court held that, for all but two Plaintiffs,
Plaintiffs had failed to allege that the touchscreen defect
manifested within Apple's one-year warranty period.
Id. at *12. The Court rejected Plaintiffs'
argument that Defendant's one-year duration provision was
unconscionable. Id. For similar reasons, the Court
rejected Plaintiffs' limited warranty claim under
California law because the Court held that Defendant properly
disclaimed limited warranties and because Defendant's
limited warranty disclaimer was not unconscionable.
Id. The Court also dismissed Plaintiffs'
Magnusson-Moss Act claim, which was dependent on
Plaintiffs' other warranty claims. Id.
the Court dismissed all 10 selected causes of action with
leave to amend. Id.
March 21, 2017, in response to this Court's order, the
parties filed an amended joint list of causes of action to
litigate for purposes of the second round motions to dismiss.
ECF No. 85. Plaintiffs elected to litigate their common law
breach of warranty claims under Illinois law. Id. at
2. Defendant elected to litigate its common law fraud claim
under Pennsylvania law. Id.
April 4, 2017, Plaintiffs filed the TACC. TACC ¶¶
8-20. Plaintiffs alleged in the TACC that, prior to their
purchase, Plaintiffs viewed a variety of information from
Apple, such as Apple's press releases about the iPhone,
Apple's key note address about the iPhone, and television
commercials about the iPhone. See Id. Immediately
after their purchase-and within the time window for returning
their iPhone free of charge-Plaintiffs reviewed the iPhone
box and information within the box. See Id. Further,
either prior to their purchase or within the time window in
which they could have returned their iPhones free of charge,
all Plaintiffs viewed Apple's September 25, 2014
“BendGate” statement. See id.
various points after Plaintiffs' purchase, each of the
named Plaintiffs experienced the touchscreen defect at issue.
Id. Below is a chart summarizing the relevant
details of each of the named Plaintiffs:
Date of Purchase
Date of Malfunction
October 25, 2014
September 25, 2014
September 19, 2014
March 11, 2015
Heirloom Estate Services
November 28, 2014
September 26, 2014
February 28, 2015
January 10, 2015
October 14, 2014
provided each of the Plaintiffs and Class Members with an
express warranty that warranted the iPhones “against
defects in materials and workmanship when used normally in
accordance with Apple's published guidelines for a period
of ONE (1) YEAR from the date of original retail purchase by
the end-user purchaser.” Id. ¶ 106;
see also ECF No. 55 (Request for Judicial Notice, or
“RJN”), Ex. A (“Limited
Warranty”). Plaintiffs allege that they were
“surprised to learn that Apple is using the terms of
the express warranty to deny warranty claims related to the
Touchscreen Defect.” TACC ¶ 108.
April 18, 2017, Apple moved to dismiss the TACC. See
Mot. On May 16, 2017, Plaintiffs filed an opposition. ECF No.
93 (“Opp.”). On June 6, 2017, Apple filed a
reply. ECF No. 97 (“Reply”).
8(a)(2) of the Federal Rules of Civil Procedure requires a
complaint to include “a short and plain statement of
the claim showing that the pleader is entitled to
relief.” A complaint that fails to meet this standard
may be dismissed pursuant to Rule 12(b)(6). Rule 8(a)
requires a plaintiff to plead “enough facts to state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “The plausibility
standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (internal quotation
marks omitted). For purposes of ruling on a Rule 12(b)(6)
motion, the Court “accept[s] factual allegations in the
complaint as true and construe[s] the pleadings in the light
most favorable to the nonmoving party.” Manzarek v.
St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031
(9th Cir. 2008).
Court, however, need not accept as true allegations
contradicted by judicially noticeable facts, see Shwarz
v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and
it “may look beyond the plaintiff's complaint to
matters of public record” without converting the Rule
12(b)(6) motion into a motion for summary judgment, Shaw
v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor
must the Court “assume the truth of legal conclusions
merely because they are cast in the form of factual
allegations.” Fayer v. Vaughn, 649 F.3d 1061,
1064 (9th Cir. 2011) (per curiam) (internal quotation marks
omitted). Mere “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Adams v. Johnson, 355 F.3d 1179,
1183 (9th Cir. 2004).
sounding in fraud are subject to the heightened pleading
requirements of Rule 9(b) of the Federal Rules of Civil
Procedure, which requires that a plaintiff alleging fraud
“must state with particularity the circumstances
constituting fraud.” Fed.R.Civ.P. 9(b); see Kearns
v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009).
To satisfy the heightened standard under Rule 9(b), the
allegations must be “specific enough to give defendants
notice of the particular misconduct which is alleged to
constitute the fraud charged so that they can defend against
the charge and not just deny that they have done anything
wrong.” Semegen v. Weidner, 780 F.2d 727, 731
(9th Cir. 1985). Thus, claims sounding in fraud must allege
“an account of the time, place, and specific content of
the false representations as well as the identities of the
parties to the misrepresentations.” Swartz v. KPMG
LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam)
(internal quotation marks omitted); see also Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir.
2003) (“Averments of fraud must be accompanied by the
who, what, when, where, and how of the misconduct
charged.” (internal quotation marks omitted)). The
plaintiff must also set forth “what is false or
misleading about a statement, and why it is false.”
Ebeid ex rel. U.S. v. Lungwitz, 616 F.3d 993, 998
(9th Cir. 2010) (internal quotation marks omitted).
Leave to Amend
Court determines that the complaint should be dismissed, it
must then decide whether to grant leave to amend. Under Rule
15(a) of the Federal Rules of Civil Procedure, leave to amend
“should be freely granted when justice so requires,
” bearing in mind that “the underlying purpose of
Rule 15 . . . [is] to facilitate decision on the merits,
rather than on the pleadings or technicalities.”
Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)
(en banc) (internal quotation marks omitted). Nonetheless, a
court “may exercise its discretion to deny leave to
amend due to ‘undue delay, bad faith or dilatory motive
on part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the
opposing party . . ., [and] futility of
amendment.'” Carvalho v. Equifax Info. Servs.,
LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (alterations
in original) (quoting Foman v. Davis, 371 U.S. 178,
again moves to dismiss all 10 of the selected causes of
action. Defendant asserts that (1) Plaintiffs lack Article
III standing to seek injunctive relief; (2) Plaintiffs'
claims for fraud fail because Plaintiffs have failed to plead
fraud with particularity; and (3) Plaintiffs' claims for
breach of express and implied warranty fail because Defendant
did not breach the Limited Warranty and because Defendant
disclaimed implied warranties. The Court considers each of
these arguments in turn.
Article III Standing to Seek Injunctive Relief
Court first addresses Defendant's argument that
Plaintiffs lack standing to seek injunctive relief. Defendant
contends that Plaintiffs lack Article III standing to seek an
injunction because Plaintiffs have failed to allege a
sufficient likelihood of future injury. Def. Mot. at 14-15.
III standing requires that “(1) the plaintiff suffered
an injury in fact, i.e., one that is sufficiently
‘concrete and particularized' and ‘actual or
imminent, not conjectural or hypothetical'; (2) the
injury is ‘fairly traceable' to the challenged
conduct, and (3) the injury is ‘likely' to be
‘redressed by a favorable decision.'”
Bates v. United Parcel Serv., Inc., 511 F.3d 974,
985 (9th Cir. 2007) (quoting Lujan v. Def. of
Wildlife, 504 U.S. 555, 560-61 (1992)). “The
standing formulation for a plaintiff seeking prospective
injunctive relief is simply one implementation of” the
general standing requirements. Id. at 985 (internal
quotation marks omitted). To establish standing for
prospective injunctive relief, a plaintiff must demonstrate
that he or she “has suffered or is threatened with a
concrete and particularized legal harm, coupled with a
sufficient likelihood that he will again be wronged in a
similar way.” Id. (internal citations and
quotations omitted). “As to the second inquiry, [a
plaintiff] must establish a ‘real and immediate threat
of repeated injury.'” Id. (quoting
O'Shea v. Littleton, 414 U.S. 488, 496 (1974)).
“[P]ast wrongs do not in themselves amount to [a] real
and immediate threat of injury necessary to make out a case
or controversy.” City of Los Angeles v. Lyons,
416 U.S. 95, 111 (1983).
cases involving false or misleading product advertising,
“where a plaintiff has no intention of purchasing the
product in the future, a majority of district courts have
held that the plaintiff has no standing to seek prospective
injunctive relief.” Davidson v. Kimberly-Clark
Corp., 76 F.Supp.3d 964, 970 (N.D. Cal. 2014).
“This Court has consistently adopted the majority
position that a plaintiff must allege that he or she intends
to purchase the products at issue in the future to establish
standing for injunctive relief.” Romero v. HP,
Inc., 2017 WL 386237, at *9 (N.D. Cal. Jan. 27, 2017)
(internal quotations and alterations omitted); see also
Rahman v. Mott's LLP, 2014 WL 325241, at *10 (N.D.
Cal. Jan. 29, 2014) (“[T]he Court agrees with defendant
that to establish standing, plaintiff must allege that he
intends to purchase the products at issue in the
Court's prior order granting Defendant's motion to
dismiss the SACC, the Court held that Plaintiff had failed to
allege standing to seek prospective injunctive relief because
the SACC “contain[ed] no allegations that any of the
named Plaintiffs intend to purchase an iPhone 6 or 6 Plus in
the future.” Davidson, 2017 WL 976048 at *7.
Further, although Plaintiffs raised for the first time in
their opposition that Plaintiffs were eligible to participate
in Apple's “Multi-Touch Repair Program, ”
this Court held that “the SACC remains devoid of any
allegations regarding Plaintiffs' intent to
participate in the program, ” and thus Plaintiffs had
failed to allege “‘a real and immediate threat of
injury.'” Id. (quoting Lyons, 416
U.S. at 111).
Plaintiffs' TACC, as with Plaintiffs' SACC,
Plaintiffs do not allege any intent to purchase an iPhone in
the future. See generally TACC. However, several
Plaintiffs allege an intent to participate in Apple's
Multi-Touch Repair Program in the future. Through Apple's
Multi-Touch Repair Program, which Apple announced on November
18, 2016, Apple has offered to “repair” an iPhone
6 Plus device for $149. Id. ¶ 199. Plaintiffs
allege that Apple is not “repairing” iPhone 6
Plus devices under this program, but is rather
“swapping them out for refurbished phones” that
experience the same touchscreen defect. Id. ¶
122. Accordingly, Plaintiffs ...