United States District Court, N.D. California, San Jose Division
ORDER DENYING DEFENDANT'S MOTION TO DISMISS RE:
DKT. NO. 130
J. DAVILA UNITED STATES DISTRICT JUDGE
claim the Apple MacBook, MacBook Pro, and MacBook Pro with
Touch Bar laptops they purchased in 2016, 2017, and 2018
contain a defective “butterfly” keyboard design
that causes their keyboards to fail-resulting in sticky keys,
unresponsive keys, and keys that do not register strokes
properly. First Am. Consolidated Class Action Compl.
(“FAC”) ¶¶ 23, 25, 29, 31, 37, 39, 44,
46, 52, 54, 58, 60, 66, 68, 76, 78, 84, 86. Plaintiffs bring
a putative class action against Defendant Apple Inc. for
allegedly selling MacBook, MacBook Pro, and MacBook Air
laptops with defective keyboards in violation of state
consumer protection and warranty laws. Id.
¶¶ 1, 193-312. Plaintiffs seek monetary damages,
equitable relief, attorneys' fees, and costs.
Id. ¶ 312. Apple moves to dismiss
Plaintiffs' FAC under Rule 12(b)(1) and Rule 12(b)(6).
Mot. to Dismiss (Dkt. No. 130) at 2-3. For the reasons below,
the court DENIES Apple's motion.
October 2018, ten plaintiffs, citizens and residents of
California, Florida, Illinois, Massachusetts, Michigan, New
Jersey, New York, and Washington, filed a putative class
action against Apple “on behalf of individuals who
purchased model year 2015 or later Apple MacBook laptops and
model year 2016 or later MacBook Pro laptops.”
Consolidated Class Action Complaint (“CCAC”)
(Dkt. No. 66) ¶¶ 1, 8-18. Plaintiffs claimed the
MacBook and MacBook Pro laptops have defective
“butterfly” keyboards that place consumers at a
“constant threat of non-responsive keys and keyboard
failure.” Id. ¶ 2. Accordingly,
Plaintiffs brought ten claims against Apple for alleged
violations of: (1) the Unfair Competition Law
(“UCL”), Cal. Bus. & Prof. Code § 17200,
et seq.; (2) Consumers Legal Remedies Act
(“CLRA”), Cal. Civ. Code § 1750, et
seq.; (3) fraudulent concealment; (4) breach of the
covenant of good faith and fair dealing (common law); (5)
Song-Beverly Consumer Warranty Act (“Song-Beverly
Act”), Cal. Civ. Code § 1792, et seq.;
(6) Washington Consumer Protection Act, Wash. Rev. Code
§ 19.86.010, et seq.; (7) Florida Deceptive and
Unfair Trade Practices Act, Fla. Stat. § 501.201, et
seq.; (8) Illinois Consumer Fraud and Deceptive Business
Practices Act, 815 Ill. Comp. Stat. § 505/1, et
seq.; (9) New Jersey Consumer Fraud Act, N.J. Stat. Ann.
§ 56:8-1, et seq.; (10) New York General
Business Law § 349; and (11) Michigan Consumer
Protection Act, Mich. Comp. Laws § 445.901, et seq.
Id. ¶¶ 174-302. In December 2018, Apple filed
a Motion to Dismiss Plaintiffs' CCAC and Request for
Judicial Notice. Dkt. Nos. 72, 74. Soon after, Plaintiffs
filed their Opposition and Apple filed a Reply. Dkt. Nos. 79,
April 2019, the court granted in part and denied in part
Apple's Motion to Dismiss Plaintiff's CCAC under
Federal Rules of Civil Procedure 12(b)(6) and 9(b). Order
(Dkt. No. 110). The court denied Apple's Motion to
Dismiss the non-California Plaintiffs' claims under
California law, deciding to defer the choice of law analysis.
Id. at 5-6. The court also denied the motion as to
Plaintiffs' claims based on fraud by omission
(id. at 13) and Plaintiffs' claim under the
unfair prong of California's UCL (id. at 16).
court, however, granted Apple's Motion to Dismiss
Plaintiffs' claims under the CLRA, Song-Beverly Act, and
implied covenant of good faith and fair dealing. Id.
at 8, 15. In their Opposition, Plaintiffs claimed Apple's
Keyboard Service Program (“Program”) did not moot
their CLRA and Song-Beverly Act claims because Apple could
not “provide an effective fix to the defect” and
the Program “does not provide all of the relief that
they seek.” Id. at 14-15 (citing Pls.'
Opp'n at 22, 24). But, Plaintiffs did not allege any
facts about the Program in the CCAC. Order at 15. Thus,
“Plaintiffs d[id] not allege any facts showing that the
Keyboard Service Program does not moot their claims under the
CLRA and the Song-Beverly Act.” Id.
the Program, Apple had requested the court to take judicial
notice of an apple.com webpage that described the Program.
Dkt. No. 74. The webpage represented that Apple will provide
free service to model years 2015-2017 MacBooks and model
years 2016-2017 MacBook Pros with keyboards that malfunction
in ways similar to the alleged failures that Plaintiffs have
experienced. Id. at 14 (citing Ex. A). The webpage
stated that the service “may involve the replacement of
one or more keys or the whole keyboard.” Id.
(quoting Ex. A). The court took judicial notice of the
following facts under Federal Rule of Evidence 201(b):
“(1) Exhibit A is an accurate depiction of an apple.com
webpage, (2) Apple has made the above representations about
the Key Board Service Program to the public through that
website, and (3) Apple is providing free services to the
models of MacBook and MacBook Pro listed on the
website.” Order at 14.
order granted Plaintiffs leave to amend. Id. at 16.
In May 2019, Plaintiffs filed their FAC. Dkt. No. 117. In
June 2019, Apple filed a Motion to Dismiss Plaintiffs'
FAC. Dkt. No. 130. Plaintiffs and Apple respectively filed an
Opposition and Reply. Dkt. Nos. 148, 152. And the court heard
oral argument on Apple's Motion to Dismiss on November
Plaintiffs' Allegations in the FAC
2019, Plaintiffs, nine consumers from California, Florida,
Illinois, Massachusetts, Michigan, New Jersey, New York, and
Washington, filed a putative class action against Apple on
behalf of persons “who purchased model year 2015 or
later Apple MacBook laptops, model year 2016 or later MacBook
Pro laptops, and model year 2018 or later MacBook Air
laptops.” FAC ¶¶ 1, 8-16. Plaintiffs invoke
jurisdiction in federal court under the Class Action Fairness
Act, 28 U.S.C. § 1332. Id. ¶ 18.
Plaintiffs bring ten causes of action against Apple, stemming
from allegedly defective butterfly keyboards for alleged
violations of: (1) the UCL, Cal. Bus. & Prof. Code §
17200, et seq.; (2) CLRA, Cal. Civ. Code §
1750, et seq.; (3) fraudulent concealment; (4)
Song-Beverly Act, Cal. Civ. Code § 1792, et
seq.; (5) Washington Consumer Protection Act, Wash. Rev.
Code § 19.86.010, et seq.; (6) Florida
Deceptive and Unfair Trade Practices Act, Fla. Stat. §
501.201, et seq.; (7) Illinois Consumer Fraud and
Deceptive Business Practices Act, 815 Ill. Comp. Stat. §
505/1, et seq.; (8) New Jersey Consumer Fraud Act,
N.J. Stat. Ann. § 56:8-1, et seq.; (9) New York
General Business Law § 349; and (10) Michigan Consumer
Protection Act, Mich. Comp. Laws § 445.901, et
seq. (“MCPA”). Id. ¶¶
Plaintiff alleges to have purchased a new MacBook, MacBook
Pro, or MacBook Pro with Touch Bar laptop with the defective
butterfly keyboard design. Id. ¶¶ 23, 29,
37, 44, 52, 58, 66, 76, 84. Plaintiffs purchased their
laptops after viewing Apple advertisements and marketing
materials that “touted the MacBook's thinness and
represented that it has a highly responsive butterfly
keyboard.” Id. ¶¶ 24, 30, 38, 45,
53, 59, 67, 77, 85. Specifically, Plaintiffs purchased their
laptops after reviewing promotional material on Apple's
website that represented the MacBook as having a “more
responsive keyboard.” Id.
Plaintiffs claim their keyboards failed within one year of
purchasing their laptops. Id. ¶¶ 23, 25,
29, 31, 33, 37, 39, 44, 46, 52, 54, 58, 60, 66, 68, 76, 78,
84, 86. Plaintiffs experienced various keyboard issues,
including sticky keys, unresponsive keys, and keystrokes that
would not register. Id. ¶¶ 25, 31, 39, 46,
54, 60, 68, 78, 86. Plaintiffs allege they consulted with
Apple or Apple certified technicians about their keyboard
issues. Id. ¶¶ 27, 34, 40-43, 47-48, 50,
55-56, 61-62, 64, 69-70, 73-74, 79-82, 87-89. However,
Apple's troubleshooting and repair efforts did not
resolve their issues. Id. ¶¶ 28, 36, 43,
51, 57, 65, 75, 83, 90.
allege that “Apple's butterfly keyboard and MacBook
are designed and produced in such a way that when minute
amounts of dust or debris accumulate under or around a key,
keystrokes fail to register properly.” Id.
¶ 2. The keyboard fails when “the keys stick,
register multiple key strikes when a key is pressed only
once, or stop registering keystrokes.” Id.
¶ 1. And “[w]hen one or more keys on the keyboard
fail, the MacBook can no longer perform its core function:
typing.” Id. ¶ 2.
allege that Apple's patent filings and in-house testing
records show that Apple was aware of the defective butterfly
keyboard design before selling MacBook laptops to the public
in 2015. Id. ¶¶ 3, 134-154. XXXXX Despite this awareness, Apple markets
“the MacBook as having a superior and highly responsive
keyboard” and “continue[s] selling it at a
premium price.” Id. ¶¶ 3-4.
Apple's representations of the keyboard are
“materially misleading” to consumers.
Id. ¶ 4. Each Plaintiff claims: “Had he
been aware of the existence of the keyboard defect, [he]
would not have purchased his laptop or would have paid
significantly less for it.” Id. ¶¶
28, 36, 43, 51, 57, 65, 75.
provides a one-year limited warranty for each MacBook laptop.
Id. ¶ 155. In relevant part, the warranty
WHAT IS COVERED BY THIS WARRANTY?
Apple Inc. of One Infinite Loop, Cupertino, California 95014,
U.S.A. (“Apple”) warrants the Apple-branded
hardware product and Apple-branded accessories contained in
the original packaging (“Apple Product”) 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 (“Warranty Period”).
WHAT WILL APPLE DO IN THE EVENT THE WARRANTY IS
If during the Warranty Period you submit a claim to Apple or
an AASP in accordance with this warranty, Apple will, at its
(i) repair the Apple Product using new or previously used
parts that are equivalent to new in performance and
(ii) replace the Apple Product with the same model (or with
your consent a product that has similar functionality) formed
from new and/or previously used parts that are equivalent to
new in performance and reliability, or
(iii) exchange the Apple Product for a refund of your
Id. ¶ 156. Plaintiffs allege that “[w]hen
a consumer submits a warranty claim, Apple instructs him or
her to attempt futile repairs or troubleshooting or fails to
provide an ...