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Davidson v. Apple, Inc.

United States District Court, N.D. California, San Jose Division

July 25, 2017

THOMAS DAVIDSON, et al., Plaintiffs,
APPLE, INC., Defendant.


          LUCY H. KOH United States District Judge.

         Plaintiffs 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.

         I. BACKGROUND

         A. Factual Background

         Defendant 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.

         According 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 screen.” Id.

         Plaintiffs 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. ¶ 55.

         Plaintiffs 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.

         Plaintiffs 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. ¶ 69.

         Moreover, 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 [1] ‘three-point bending test' to test the iPhone's ability to handle reasonable force;” [2] “a ‘pressure-point cycling test' that expands substantial force on the iPhones' display and casing;” [3] “‘torsion testing, ' whereby an Apple engineer takes an iPhone and sits down thousands of times;” and [5] “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.

         On 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.

         Plaintiffs 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. ¶¶ 98-105.

         On 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.

         B. Procedural History

         On 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.

         On 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 sub-classes. Id.

         Given 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.

         On 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.

         On 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. [1]

         The 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.

         The 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. Id.

         Second, 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.

         Finally, 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.

         Thus, the Court dismissed all 10 selected causes of action with leave to amend. Id.

         On 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.

         On 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.

         At 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

Todd Cleary


October 25, 2014

January 2016

Thomas Davidson


December 2014

August 2016

Adam Benelhachemi


June 2015

December 2015

Michael Pajaro

New Jersey

September 25, 2014

July 2016

John Borzymowski


September 19, 2014

February 2016

Brooke Corbett


February 2015

April 2016

Taylor Brown


November 2014

January 2016

Justin Bauer


March 11, 2015

July 2015

Heirloom Estate Services


November 28, 2014

December 2015

Kathleen Baker

New York

September 26, 2014

June 2016

Matt Muilenberg


February 28, 2015

May 2016

William Bon


January 10, 2015

August 2016

Jason Petty


October 14, 2014

March 2016

         Apple 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”).[2] 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.

         On 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”).


         A. Rule 12(b)(6)

         Rule 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).

         The 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).

         B. Rule 9(b)

         Claims 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).

         C. Leave to Amend

         If the 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, 182 (1962)).


         Defendant 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.

         A. Article III Standing to Seek Injunctive Relief

         The 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.

         Article 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).

         In 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 future.”).

         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).

         In 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. ΒΆ 122. Accordingly, Plaintiffs ...

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