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Ahern v. Apple Inc.

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

October 11, 2019

KIM AHERN, et al., Plaintiffs,
v.
APPLE INC., Defendant.

          ORDER GRANTING MOTION TO DISMISS IN PART WITH PREJUDICE AND IN PART WITH LEAVE TO AMEND RE: DKT. NO. 48

          LUCY H. KOH, UNITED STATES DISTRICT JUDGE

         Plaintiffs bring this putative class action against Defendant Apple Inc. (“Apple”) and allege common law fraud claims and violations of various state consumer fraud statutes. ECF No. 33 (“Amended Class Action Complaint” or “ACAC”). Before the Court is Apple's motion to dismiss.[1] ECF No. 48. Having considered the submissions of the parties, the relevant law, and the record in this case, the Court GRANTS Apple's motion to dismiss. The Court GRANTS the motion to dismiss Plaintiffs' Pennsylvania fraudulent concealment claim with prejudice, and GRANTS the motion to dismiss Plaintiffs' nine other claims with leave to amend.

         I. BACKGROUND

         A. Factual Background

         Apple is the manufacturer of “state-of-the-art technology products, ” including iMac desktops and Macbook laptops (collectively, “Apple computers”). ACAC ¶¶ 1-2. According to Plaintiffs, “Apple's computers . . . contain a critical defect that had led to at least two deficiencies” in the computers. Id. ¶ 2. Plaintiffs allege that Apple computers utilize “fans and vents to cool them down, ” but that “Apple did not install any filters for the vents.” Id. This “critical defect”- named the “Filter Defect”-allows “fans [to] suck in dirt and debris.” Id. This results in dirt and debris “get[ting] stuck behind the screen, causing permanent dark smudging to appear in the corners of the screens.” Id. “The second deficiency caused by the Filter Defect is the harmful effect of dust on the ‘motherboard' of the computer, ” which “causes it to overheat, ” “slows down the processing speed of the computer, and ultimately causes it to crash.” Id. ¶ 3.

         Plaintiffs are citizens of Arizona, California, Colorado, Florida, Illinois, Massachusetts, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Texas, Utah, and Wisconsin who bought Apple computers between March 2011 and April 2018. ACAC ¶¶ 9, 17, 22, 27, 32, 37, 42, 47, 50, 54, 58, 63, 67, 71, 74, and 78. Plaintiffs plead that “Apple promotes and advertises its products” “based on their reliability, durability, and longevity.” Id. ¶ 93. According to Plaintiffs, Apple claimed that its computer screens were “clear and remarkably vivid” (id. ¶¶ 59, 64) and of the “highest quality” (id. ¶ 75); that Apple's computer displays were “the most advanced, most brilliant desktop display[s] [Apple] ever built” (id. ¶ 93); that “everything is designed to work just the way you expect it to” (id.); and that Apple products underwent “rigorous testing methods that simulated customers' experiences” (id. ¶ 94). Plaintiffs allege that they relied on these advertisements when purchasing Apple computers. See, e.g., Id. ¶¶ 56, 74, 89, 101.

         Plaintiffs also claim that Apple knew about the Filter Defect and the resulting screen “smudges.” As evidence, Plaintiffs point to complaints “[o]n Apple's own website, ” where “Computer owners have been complaining about the dark, smudgy marks on their displays for years, which often appeared just after their one-year warranty expired.” Id. ¶ 88. Plaintiffs do not allege, however, that any consumers complained about so-called motherboard issues on Apple's website or elsewhere. Id.

         Furthermore, according to Plaintiffs, “Apple has acknowledged the Filter Defect exists” and included a “limited disclosure of the Filter Defect in user manuals.” Id. ¶ 91. The disclosure allegedly states the following:

Do not operate your iMac in areas with significant amounts of airborne dust, or smoke from cigarettes, cigars, ashtrays, stoves, or fireplaces, or near an ultrasonic humidifier using unfiltered tap water. Tiny airborne particles produced by smoking, cooking, burning, or using an ultrasonic humidifier with unfiltered water may, in rare instances, enter the ventilation openings of your iMac and, under certain conditions, result in a slight haze on the inside surface of the glass panel that covers the iMac display.

Id. Plaintiffs do not allege that they viewed this “limited disclosure” prior to purchasing their Apple computers.

         B. Procedural History

         On November 28, 2018, Plaintiffs Kim Ahern, Nikolas Frenzel, and Justin Evans filed a putative class action complaint against Apple that alleged causes of action under (1) California's Unfair Competition Law (“California UCL” or “UCL”), Cal. Bus. & Prof. Code § 17200; (2) California's Consumer Legal Remedies Act, Cal. Civ. Code § 1750; (3) California's False Advertisement Law, Cal. Bus. & Prof. Code § 17500; (4) breach of contract; (5) fraudulent concealment; and the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301. See ECF No. 1.

         On February 15, 2019, Plaintiffs filed the Amended Class Action Complaint (“ACAC”). ECF No. 33. The ACAC adds several named Plaintiffs and causes of action under the laws of Arizona, Colorado, Florida, Illinois, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Texas, and Utah. See Id. In total, the FAC alleges 46 causes of action, one nationwide class, and 14 state subclasses.

         On March 15, 2019, Apple filed a motion to dismiss all 46 causes of action. ECF No. 34. The Court determined that addressing all issues at once was unwieldy and denied Apple's motion to dismiss without prejudice. ECF No. 42 at 1-2. The Court ordered each party to select five causes of action to litigate for purposes of the instant motion to dismiss and through trial. Id. at 2.

         The parties selected the following 10 causes of action: (1) California UCL, Cal. Bus. & Prof. Code § 17200; (2) California fraudulent concealment; (3) Arizona Consumer Fraud Act (“Arizona CFA”), Ariz. Rev. Stat. § 44- 1521, et seq.; (4) Florida fraudulent concealment; (5) Illinois Consumer Fraud and Deceptive Business Practices Act (“Illinois CFA”), 815 Ill. Comp. Stat. 505/1, et seq.; (6) New Hampshire Consumer Protection Act (“New Hampshire CPA”), N.H. Rev. Stat. Ann. § 358-A, et seq.; (7) New Mexico Unfair Trade Practices Act (“New Mexico UTPA”), N.M. Stat. Ann. § 358-A:1, et seq.; (8) North Carolina Unfair and Deceptive Practices Acts (“North Carolina UDPA”), N.C. Gen. Stat. § 75-1.1, et seq.; (9) Oregon Unlawful Trade Practices Act (“Oregon UTPA”), Or. Rev. Stat. § 646.605, et seq.; and (10) Pennsylvania fraudulent concealment. ECF Nos. 45 and 47. Additionally, Plaintiffs voluntarily dismissed their causes of action under the Magnuson-Moss Warranty Act and all state breach of contract claims. ECF No. 46.

         On August 2, 2019, Apple filed the instant motion to dismiss. ECF No. 48 (“Mot.”). On August 23, Plaintiffs filed an opposition. ECF No. 49 (“Opp.”). On September 4, 2019, Apple filed a reply. ECF No. 50 (“Reply”).[2]

         II. LEGAL STANDARD

         A. Motion to Dismiss Under Federal Rule of Civil Procedure 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 Federal Rule of Civil Procedure 12(b)(6). The U.S. Supreme Court has held that Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic 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 “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. Motion to Dismiss Under Federal Rule of Civil Procedure 9(b)

         Claims sounding in fraud are subject to the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). Bly-Magee v. California, 236 F.3d 1014, 1018 (9th Cir. 2001). Under the federal rules, a plaintiff alleging fraud “must state with particularity the circumstances constituting fraud.” Fed.R.Civ.P. 9(b). To satisfy this standard, 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). In other words, “[a]verments of fraud must be accompanied by ‘the who, what, when, where, and how' of the misconduct charged.” Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003) (citation omitted). The plaintiff must also plead facts explaining why the statement was false when it was made. See In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 1994) (en banc), superseded by statute on other grounds as stated in Marksman Partners, L.P. v. Chantal Pharm. Corp., 927 F.Supp. 1297 (C.D. Cal. 1996).

         “When an entire complaint . . . is grounded in fraud and its allegations fail to satisfy the heightened pleading requirements of Rule 9(b), a district court may dismiss the complaint . . . .” Vess, 317 F.3d at 1107. A motion to dismiss a complaint “under Rule 9(b) for failure to plead with particularity is the functional equivalent of a motion to dismiss under Rule 12(b)(6) for failure to state a claim.” Id.

         C. Leave to Amend

         If the Court determines that a 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 “shall be freely given when justice so requires, ” bearing in mind “the underlying purpose of Rule 15 to facilitate decisions on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (alterations and internal quotation marks omitted). When dismissing a complaint for failure to state a claim, “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Id. at 1130 (internal quotation marks omitted). Accordingly, leave to amend generally shall be denied only if allowing amendment would unduly prejudice the opposing party, cause undue delay, or be futile, or if the moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music Publ'g, 512 F.3d 522, 532 (9th Cir. 2008).

         III. DISCUSSION

         Apple's motion to dismiss challenges Plaintiffs' (1) California UCL, Cal. Bus. & Prof. Code § 17200; (2) California fraudulent concealment; (3) Arizona Consumer Fraud Act (“Arizona CFA”), Ariz. Rev. Stat. § 44- 1521, et seq.; (4) Florida fraudulent concealment; (5) Illinois Consumer Fraud and Deceptive Business Practices Act (“Illinois CFA”), 815 Ill. Comp. Stat. 505/1, et seq.; (6) New Hampshire Consumer Protection Act (“New Hampshire CPA”), N.H. Rev. Stat. Ann. § 358-A, et seq.; (7) New Mexico Unfair Trade Practices Act (“New Mexico UTPA”), N.M. Stat. Ann. § 358-A:1, et seq.; (8) North Carolina Unfair and Deceptive Practices Acts (“North Carolina UDPA”), N.C. Gen. Stat. § 75-1.1, et seq.; (9) Oregon Unlawful Trade Practices Act (“Oregon UTPA”), Or. Rev. Stat. § 646.605, et seq.; and (10) Pennsylvania fraudulent concealment claims.

         At the outset, the Court notes that “Plaintiffs concede . . . that . . . the Pennsylvania economic loss doctrine bars Plaintiff Kresnevic's common law fraud claims.” Opp. at 24. Accordingly, the Court GRANTS with prejudice Apple's motion to dismiss the Pennsylvania fraudulent concealment claim.

         For the remaining nine claims, Plaintiffs allege that Apple made both affirmative misrepresentations as well as material omissions and thereby violated various state laws. Regarding their affirmative misrepresentation theory, Plaintiffs assert that Apple made false statements regarding the quality, clarity, and brilliance of its computer screens. See ACAC ¶¶ 59, 64, 75, 93, 94. As for the omission theory, Plaintiffs contend that Apple failed to disclose the existence of the Filter Defect to consumers. See Id. ¶¶ 91-92. The Court begins its analysis with Plaintiffs' affirmative misrepresentation theory and then turns to Plaintiffs' omission theory.[3]

         A. Affirmative Misrepresentation Theory

         Plaintiffs allege that Apple made affirmative misrepresentations upon which Plaintiffs relied in making their decisions to purchase Apple computers. Opp. at 9. All nine state law causes of action recognize fraud claims based on affirmative misrepresentations. Nonetheless, Apple contends that Plaintiffs' affirmative misrepresentation theory fails under every state law claim pled here. Specifically, Apple raises three arguments in support of dismissal. First, Apple contends that the statements are “mere puffery” that cannot form the basis of a claim for misrepresentation. Second, Apple argues Plaintiffs do not adequately allege how the identified statements are false, let alone false when made. Finally, Apple asserts that Plaintiffs fail to adequately plead reliance. Because the Court finds that all the alleged affirmative misrepresentations are either non-actionable puffery or not adequately pled as false, the Court need not reach Apple's reliance argument.

         1. Legal Standard

         Fraud claims based on affirmative misrepresentations are cognizable under the California UCL, California fraudulent concealment law, the Arizona CFA, Florida fraudulent concealment law, the Illinois CFA, the New Hampshire CPA, the New Mexico UTPA, the North Carolina UDPA, and the Oregon UTPA. See Doe v. SuccessfulMatch.com, 70 F.Supp.3d 1066, 1075 (N.D. Cal. 2014) (“[T]he [California] UCL . . . prohibit[s] . . . affirmative misrepresentations . . . .” (citation omitted)); In re Arizona Theranos, Inc., Litig., 256 F.Supp.3d 1009, 1023 (D. Ariz. 2017), on reconsideration in part, 2017 WL 4337340 (D. Ariz. Sept. 29, 2017) (“Generally stated, claims under the [Arizona Consumer Fraud Act], like common law fraud claims, can be based on affirmative misrepresentations, concealment, or omission of material facts.” (quotation omitted)); Apodaca v. Whirlpool Corp., 2013 WL 6477821, at *12 (C.D. Cal. Nov. 8, 2013) (“To state a claim for fraudulent concealment under Florida law, a plaintiff must allege [among other things] . . . ‘a misrepresentation (or omission) of a material fact . . . .” (quoting Maison v. Ford Motor Co., 2005 WL 1684159, at *1 (N.D. Fla. July 7, 2005)); Spector v. Mondelez Int'l, Inc., 178 F.Supp.3d 657, 664 (N.D. Ill. 2016) (“To succeed in a private cause of action under [the Illinois CFA], a plaintiff must prove (1) a deceptive act or practice by the defendant, (2) the defendant's intent that the plaintiff rely on the deception, (3) the occurrence of the deception in the course of conduct involving trade or commerce, and (4) actual damage to the plaintiff (5) proximately caused by the deception.” (quotation omitted)); Evans v. Taco Bell Corp., 2005 WL 2333841, at *12 (D.N.H. Sept. 23, 2005) (“The New Hampshire Supreme Court has held that the [New Hampshire CPA's] prohibition extends to misrepresentations made in the course of a business transaction.” (citation omitted)); McKenzie v. Wells Fargo Bank, N.A., 931 F.Supp.2d 1028, 1048 (N.D. Cal. 2013) (“Generally speaking, the [New Mexico Unfair Trade Practices Act] is designed to provide a remedy against misleading identification and false or deceptive advertising.” (quoting Lohman v. Daimler-Chrysler Corp., 142 N.M. 437, 442, 166 P.3d 1091 (Ct. App. 2007)); Solum v. Certainteed Corp., 147 F.Supp.3d 404, 411 (E.D. N.C. 2015) (“When the alleged [North Carolina] UDTPA violation is a misrepresentation, a plaintiff must prove detrimental reliance on the alleged misrepresentation to satisfy the proximate cause requirement.” (citations omitted)); Teater v. Pfizer, Inc., 2012 WL 3776366, at *9 (D. Or. June 27, 2012), report and recommendation adopted, 2012 WL 3776364 (D. Or. Aug. 29, 2012) (dismissing Oregon Unlawful Trade Practices Act claim because “where the alleged UTPA violations are affirmative misrepresentations, the causation element requires proof of reliance-in-fact by the consumer”).

         Plaintiffs allege that Apple made affirmative misrepresentations in the form of statements that Apple's computer screens were “clear and remarkably vivid” (ACAC ¶¶ 59, 64) and of the “highest quality” (id. ¶ 75); that Apple's displays were “the most advanced, most brilliant desktop display[s] [Apple] ever built” (id. ¶ 93); that “everything is designed to work just the way you expect it to” (id.); and that Apple products underwent “rigorous testing methods that simulated customers' experiences” (id. ¶ 94).

         2. Most of the Identified Statements are Non-Actionable Puffery

         Even under a theory of affirmative misrepresentation, however, not all statements are actionable as a matter of law. “A challenged claim is non-actionable ‘puffery' if it is a generalized, vague, and unspecified assertion upon which a reasonable consumer could not rely.” Rasmussen v. Apple Inc., 27 F.Supp.3d 1027, 1039 (N.D. Cal. 2014) (internal alterations and quotations omitted). An actionable statement must make a “specific and measurable claim, capable of being proved false or of being reasonably interpreted as a statement of objective fact.” Id. (quotation omitted). “[T]he common theme that seems to run through cases considering puffery in a variety of contexts is that consumer reliance will be induced by specific rather than general assertions.” Elias v. Hewlett-Packard co., 950 F.Supp.2d 1123, 1133 (N.D. Cal. 2013) (quoting Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv., Inc., 911 F.2d 242 (9th Cir. 1990)). Whether a statement is puffery or a representation of fact is a question of law that can be properly decided on a motion to dismiss. Cook, 911 F.2d at 245.

         The California UCL, California fraudulent concealment, Arizona CFA, Florida fraudulent concealment, Illinois CFA, New Hampshire CPA, New Mexico UTPA, North Carolina UDPA, and Oregon UTPA claims pled here all recognize that puffery is non-actionable. Hadley v. Kellogg Sales Co., 273 F.Supp.3d 1052, 1081 (N.D. Cal. 2017) (“Generalized, vague, and unspecified assertions constitute ‘mere puffery' upon which a reasonable consumer could not rely, and thus are not actionable under the [California] UCL . . . .” (internal alterations and quotations omitted)); Cheatham v. ADT Corp., 161 F.Supp.3d 815, 827 (D. Ariz. 2016) (“Because puffery is a subjective characterization of a product's value rather than a representation of fact, it cannot give rise to a[n] [Arizona CFA] claim.”); Arcure v. Kellogg Co., 2011 WL 13294631, at *6 (M.D. Fla. Mar. 29, 2011) (dismissing claim for fraudulent concealment under Florida law because “Defendant's allegedly deceptive statements . . . are general, non-specific, and subjective, and therefore constitute puffery”); Barbara's Sales, Inc. v. Intel Corp., 879 N.E.2d 910, 926 (Ill. 2007) (dismissing Illinois CFA claim because the “representation is nothing more than puffery, and therefore is not a ‘deceptive act' within the purview of the Act”); Evans, 2005 WL 2333841, at *12 n.19 (dismissing New Hampshire CPA claim in part because “general claims to superiority, known as ‘puffery,' do not amount to actionable representations”); Begay v. Medicus Healthcare Sols., LLC, 2015 WL 13650107, at *6 (D.N.M. Nov. 18, 2015) (dismissing New Mexico UTPA claims arising from “[p]hrases like, ‘laser-focused on quality'” and ‘quality solutions'” because they “are not measurable standards and are so broad that one would not reasonably rely upon them”); Solum, 147 F.Supp.3d at 412 (“[M]ere puffery is not actionable under the [North Carolina] UDTPA or as common law fraud.” (citation omitted)); Andriesian v. Cosmetic Dermatology, Inc., 2015 WL 1638729, at *4 (D. Or. Mar. 3, 2015), report and recommendation adopted, 2015 WL 1925944 (D. Or. Apr. 28, 2015) (applying puffery doctrine to Oregon UTPA claim).

         Plaintiffs do not contest that puffery is non-actionable. Instead, Plaintiffs argue that the statements “are not puffery.” Opp. at 9. Plaintiffs contend that the following statements are actionable misrepresentations: that the computer screens were “clear and remarkably vivid” and of the “highest quality (ACAC ¶¶ 59, 64, 75); that Apple displays were “the most advanced, most brilliant desktop display[s] we've ever built” (id. ¶¶ 4, 93); that “everything is designed to work just the way you expect it to” (id. ¶¶ 4, 93); and that Apple products underwent “rigorous testing methods that simulated customers' experiences” (id. ¶¶ 4, 94). Plaintiffs acknowledge that each individual statement “may not be actionable in isolation” but contend that the statements “become actionable when they contribute to the deceptive context of the advertising as a whole.” Opp. at 9.

         To begin, the alleged statements about “clear and remarkably vivid” computer screens “are not factual representations that a given standard is met.” Consumer Advocates v. Echostar Satellite Corp., 113 Cal.App.4th 1351, 1361 (2003). Courts have consistently held that “[g]eneralized advertisements” that a computer is ‘ultra-reliable' or ‘packed with power' say nothing about the specific characteristics or components of the computer.” Elias, 903 F.Supp.2d at 855; Oestreicher v. Alienware Corp., 544 F.Supp.2d 964, 973 (N.D. Cal. 2008). The same is true here, as statements that Apple computer screens are “clear and remarkably vivid” do not say anything about specific characteristics or components-or even how clear or vivid the screens actually are. See Consumer Advocates, 113 Cal.App.4th at 1361 (finding statements that a product provided “crystal clear digital” video and “CD quality” audio were puffery statements because “[a]fter all, how clear is any given crystal [or] how good are the speakers on the CD player?”). Thus, the alleged statements that Apple's computer screens were “clear and remarkably vivid” are similarly generalized statements that “[a] reasonable consumer could not rely [upon] as describing the specific . . . capabilities” of an Apple computer. See Elias, 903 F.Supp.2d at 855.

         Furthermore, Apple's alleged statements that its computer screens were of the “highest quality” and that its desktop displays were “the most advanced, most brilliant” that Apple built are also non-actionable puffery. These statements “are all boasts, all-but-meaningless superlatives.” Consumer Advocates, 113 Cal.App.4th at 1361. Numerous courts have not hesitated to declare similar statements non-actionable. See Oestreicher, 544 F.Supp.2d at 973 (“[G]eneralized and vague statements of product superiority such as ‘superb, uncompromising quality'” and “‘longer battery life' are . . . all non-actionable puffery.”); Hodges v. Apple Inc., 2013 WL 4393545, at *3 (N.D. Cal. Aug. 12, 2013) (concluding that Apple's statement that its product had “the world's most advanced notebook display . . . . is non-actionable puffery because it is a generalized, vague, and unspecified assertion upon which a reasonable consumer could not rely” (internal alterations and quotation omitted)); Apodaca v. Whirlpool Corp., 2013 WL 6477821, at *6 (C.D. Cal. Nov. 8, 2013) (holding that “statements about dependability and superiority, ” including comments such as “unequaled tradition of quality production” or “unrivaled performance” are “too vague to be actionable”); Cook, 911 F.2d 242 (statement that lamps were “far brighter than any lamp ever before offered for home movies” was puffery (citing Smith-Victor Corp. v. Sylvania Elec. Prods., Inc., 242 F.Supp. 302, 308-09 (N.D. Ill. 1965)).

         Next, Apple's advertisement that “everything is designed to work just the way you expect it to” fares no better under existing law. Courts have concluded that statements that a product is “designed to ‘last'”-or that a company is “sure that you'll be pleased with the outstanding quality, reliability, and performance of your new [product]”-do not constitute “actionable statements” “about specific or absolute characteristics.” Rasmussen, 27 F.Supp.3d 1040-43 (holding advertisements that Mac is “designed to last, ” “designed for a long productive, ” and “designed to be a better computer” are all puffery); Anunziato v. eMachines, Inc., 402 F.Supp.2d 1133, 1139-41 (C.D. Cal. 2005) (finding that a statement that “[w]e are sure that you'll be pleased with the outstanding quality, reliability, and performance of your new notebook” to be non- actionable puffery). Indeed, Apple's purported advertisement that “everything is designed to work just the way you expect it to” “is not amenable to general verification or falsification because its truth or falsity for a particular consumer depends as much on the characteristics of that consumer as the efficacy of the product.” See Cheatham, 161 F.Supp.3d at 828; Rasmussen, 27 F.Supp.3d at 1043 (holding statements non-actionable because they were not “capable of being proved false or of being reasonably interpreted as a statement of objective fact” (citation omitted)). Accordingly, the statement that “everything is designed to work just the way you expect it to” is also non-actionable puffery.

         The last challenged statement is that Apple products underwent “rigorous testing methods that simulated customers' experiences.” Whether this statement is actionable as a matter of law presents a closer issue. “A specific and measurable advertisement claim of product superiority based on product testing is not puffery.” Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1145 (9th Cir. 1997). Here, the question is whether the challenged statement-that Apple products underwent “rigorous testing methods that simulated customers' experiences”-makes a “specific and measurable” advertisement claim. See Id. The Court holds that it does.

         Vigil v. General Nutrition Corp., 2015 WL 2338982, at *9 (S.D. Cal. May 13, 2015), is instructive in helping discern the contours of the specific advertisement claim at issue here. In Vigil, the court considered whether a company selling a virility supplement for men made misrepresentations by claiming one of its products was “[f]ormulated with premium ingredients to provide maximum potency.” Id. at *9. The court noted that the terms “premium” and “maximum”-like the statements “most brilliant, ” “rigorous, ” and “highest quality” here-were “subjective terms that are typical of puffery.” 2015 WL 2338982, at *9. At the same time, the court concluded that the statement was actionable because it “arguably promise[d] consumers that the product [was] capable of producing some effect on male potency (as opposed to maximum potency of the product).” Id. (emphasis added). That same logic applies here.

         The alleged claim that Apple products underwent “rigorous testing methods that simulated customers' experiences” arguably promises that Apple subjected its products to some form of testing and is therefore “a specific factual assertion which could be established or disproved.” Anunziato, 402 F.Supp.2d at 1140; see Id. (“The Court finds that the phrase ‘most stringent quality control tests' is actionable, and is not mere puffery.”); In re Yahoo! Inc. Customer Data Sec. Breach Litig., 2017 WL 3727318, at *26 (N.D. Cal. Aug. 30, 2017) (finding that alleged statement that Defendants had “physical, electronic, and procedural safeguards that comply with federal regulations to protect personal information about you” was not puffery because “[a] reasonable consumer could rely on this statement as representing that Defendants did, in fact, use safeguards that complied with federal regulations”). As a result, this final statement-that Apple products underwent “rigorous testing methods that simulated customers' experiences”-is not mere puffery.

         Finally, Plaintiffs resist the conclusion that the vast majority of the aforementioned statements are non-actionable puffery. Plaintiffs, relying on Vigil, contend that though the statements “may not be actionable in isolation, ” the statements nonetheless all become actionable because they contribute to a “deceptive context” of advertising. Opp. at 9. But Vigil has a far more limited holding, as the Vigil court held that the terms “premium” and “maximum”-like the statements “most brilliant, ” “rigorous, ” and “highest quality” here-were “subjective terms that are typical of puffery.” 2015 WL 2338982, at *9. Vigil only held that the statement was actionable because it “arguably promise[d] consumers that the product [was] capable of producing some effect.” Id. (emphasis added). Vigil does little to distinguish the numerous aforementioned cases, which are directly applicable to the instant case. Furthermore, Plaintiffs in any event do not explain how the various puffery statements merge to form one overarching misrepresentation. See Elias, 950 F.Supp.2d at 1134 (“[T]he combination of several ‘puff' statements does not automatically create an actionable misrepresentation.”).

         Accordingly, the Court finds that the following statements are non-actionable puffery: that the computer screens were “clear and remarkably vivid” and of the “highest quality (ACAC ¶¶ 59, 64, 75); that Apple displays were “the most advanced, most brilliant desktop display[s] [Apple has] ever built” (id. ¶¶ 4, 93); and that “everything is designed to work just the way you expect it to” (id. ¶¶ 4, 93). The Court GRANTS Apple's motion to dismiss Plaintiffs' California UCL, California fraudulent concealment, Arizona CFA, Florida fraudulent concealment, Illinois CFA, New Hampshire CPA, New Mexico UTPA, North Carolina UDPA, and Oregon UTPA claims to the extent that these claims are premised on an affirmative misrepresentation theory and statements of puffery. The Court also GRANTS Plaintiffs leave to amend these claims based on alleged puffery statements because amendment would not necessarily be futile, cause undue delay, or unduly prejudice Apple, and Plaintiffs have not acted in bad faith. Leadsinger, 512 F.3d at 532.

         As to the statements that Apple products underwent “rigorous testing methods that simulated customers' experiences” (id. ¶¶ 4, 94), these statements are not puffery because whether Apple products underwent any testing is objectively verifiable. As a result, the Court next considers whether Plaintiffs adequately plead that the “rigorous testing methods” statements are false.

         3. Plaintiffs Do Not Adequately Plead that Apple's Remaining Statements are False or Misleading

         Plaintiffs allege that Apple's advertisements that its products underwent “rigorous testing methods that simulated customers' experiences” are false and misleading. ACAC ¶¶ 4, 94. The parties agree that the Plaintiffs' California UCL, California fraudulent concealment, Arizona CFA, Florida fraudulent concealment, Illinois CFA, New Hampshire CPA, New Mexico UTPA, North Carolina UDPA, and Oregon UTPA claims sound in fraud and are therefore subject to Rule 9(b)'s heightened pleading standard. Mot. at 6 (“And because all Plaintiffs' claims are based on the same alleged fraudulent scheme, Rule 9(b) requires that all claims satisfy its heightened pleading standard.”); Opp. at 7 (“Plaintiffs' fraud claims satisfy Rule 9(b).”).

         To meet Rule 9(b)'s heightened pleading standard, a plaintiff must allege why a statement was “untrue or misleading when made.” In re GlenFed, 42 F.3d at 1549 (emphasis in original). Claims sounding in fraud must also 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, 476 F.3d at 764.

         Plaintiffs fail to state how the “rigorous testing methods” statements constitute false or misleading representations. Plaintiffs merely plead that the statements regarding “rigorous testing methods” are false and misleading, but Plaintiffs do not plead “what is false or misleading about [the] statement, and why it is false.” In re GlenFed, 42 F.3d at 1548. In fact, when alleging that Apple knew about the supposed defect, Plaintiffs assume that Apple did “simulate[] customers' experiences with their devices and test[] extensively.” Opp. at 18.

         Courts have dismissed misrepresentation claims when a plaintiff fails to plead how an alleged misrepresentation is false or misleading. For instance, in Palmer v. Apple Inc., the plaintiff pleaded that he relied on “quantitative statements regarding the iPhone 5's performance or its compatibility with Wi-Fi and cellular networks.” 2016 WL 1535087, at *5 (N.D. Cal. Apr. 15, 2016). However, the Palmer plaintiff did not allege how ...


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