IRA P.

ROTHKEN, SBN 160029

1 ROTHKEN LAW FIRM

2 3 Hamilton Landing, Ste 280

Novato, CA 94949
3 Telephone: (415) 924-4250
Facsimile: (415) 924-2905
4 ira@techfirm.com

5
SETH R. LESSER (Pro Hac Vice Pending)
6 KLAFTER OLSEN & LESSER LLP
Two International Drive, Suite 350
7 Rye Brook, NY 10573
Telephone: 914-934-9200
8 Facsimile: 914-934-9220
seth@klafterolsen.com
9

10 Attorneys for Plaintiff STEVE TIETZE

11 UNITED STATES DISTRICT COURT

12
NORTHERN DISTRICT OF CALIFORNIA
13 San Jose Division
14 STEVE TIETZE, on Behalf of Himself Case No:
15 and for the Benefit of All with the
Common or General Interest, Any CLASS ACTION
16 Persons Injured, and All Others NATIONWIDE CLASS ACTION AND
17 Similarly Situated, REPRESENTATIVE ACTION
Plaintiff, COMPLAINT FOR (1) UNFAIR
18 COMPETITION (BUSINESS &
19 vs. PROFESSIONS CODE §17200); (2)
FALSE AND MISLEADING
20 APPLE, INC., a California Corporation. ADVERTISING (BUSINESS &
21 PROFESSIONS CODE §17500); (3)
Defendant. BREACH OF WARRANTY; (4)
22 BREACH OF SONG-BEVERLY
23 CONSUMER WARRANTY ACT
(CALIFORNIA); AND (5) VIOLATION
24
OF THE CONSUMER LEGAL
25 REMEDIES ACT, , CALIFORNIA
CIVIL CODE SECTION §§1750 ET
26
SEQ.
27
DEMAND FOR JURY TRIAL
28

CLASS ACTION COMPLAINT -1-

 1 Plaintiff STEVE TIETZE (“TIETZE” or “Plaintiff,”) brings this action
2 against APPLE, INC. (“APPLE” or “Defendant”), on behalf of himself, all others

3 similarly situated and the general public, and alleges upon information and belief,

4 except as to his own actions, the investigation of his counsel and the facts that are a

5 matter of public record, as follows:

6 I. OVERVIEW

7 1. This is a class action brought by Plaintiff on behalf of a class (the

8 “Class”) of all consumers who purchased the Defendant’s iPhone 4 phone
9 (“iPhone4”). As alleged more fully below, Defendant misrepresented and

10 concealed material information in the marketing, advertising, sale and servicing of

11 its iPhone4 particularly as it relates to the quality of the mobile phone antenna and

12 reception and related software. The iPhone4s were marketed, advertised and sold

13 as high quality smartphone products designed to meet consumer and business

14 requirements and during the relevant period were among the most expensive

15 consumer mobile phones sold. The iPhone4s were sold as powerful, full-featured

16 mobile phones with a high quality redesigned case and antennae, high quality voice

17 communications over the AT&T mobile network, wireless email, text messaging,

18 web browsing and hundreds of applications available for download. The mobile

19 phone case and antenna design is defective. The case and antenna design has led to

20 a substantial degradation in signal quality and dropped calls when the phone is

21 used in a normal and foreseeable fashion by users. Related “mobile reception”

22 software provides users with a misleading manifestation of the quality of the

23 mobile signal it its display of the number of “bars” and fails to optimize the

24 antenna reception.

25 2. At all pertinent times Defendant represented to the public, including

26 Class members, that the iPhone 4 was a dependable and reliable mobile device;

27

28

CLASS ACTION COMPLAINT -2-

 1 that they were free from defects; and that they were of merchantable quality and

2 workmanship.

3 3. In fact, the iPhone4 suffered from an extremely defective antenna

4 system built in to the body of the phone where it was subject to substantial

5 interference and degradation of the wireless signal when held in a normal manner

6 and held in a manner reasonably expected by users of such device. Defendant

7 failed to ensure a dependable mobile antenna system was in place.

8 4. Furthermore, Plaintiff is informed and believes that Defendant has

9 been aware for a substantial period of time that the iPhone4 was prone to

10 unreasonably poor reception, antenna design defects, and dropped calls.

11 Nevertheless, Defendant failed to warn its customers of the problem or tried to

12 prevent them from suffering poor reception. Defendant’s main response to date is

13 to buy a $29.95 dollar case. Defendant has failed to effectively remedy the

14 problems and defects inherent in the iPhone4. Unwilling to admit fault, Defendant

15 sat silently while consumers purchased these defective products without warning

16 customers about the risks inherent in purchasing and relying upon a iPhone4 as a

17 mobile telephone communication device.

18 5. In addition to the reception problems with the antenna and case design
19 Defendants designed their smartphone antenna related software in a materially

20 defective manner including, but not limited to, inaccurately manifesting the

21 number of bars or quality of the reception of the iphone4 devices and not

22 optimizing the antenna signal quality. Defendants knew or should have known of

23 the material defects in their antenna related software design and taken steps to

24 advise potential purchasers of the defects and taken steps to fix such software

25 before the iphone4 was placed into the marketplace for purchase or at least in a

26 more expedient fashion.

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CLASS ACTION COMPLAINT -3-

 1 6. As a result of Defendant’s false and misleading statements and
2 concealment, Plaintiff and the Class bought thousands of iPhone4s and were

3 unable to use these devices as advertised and have not had any practical means of

4 effective repair or redesign and in essence, based on the defective design, obtained

5 a smartphone that is worth less than what they were purchasing. The iPhone4

6 failures and defects continue to occur.

7 7. Plaintiff asserts claims under California Business and Professions

8 Code §§17200 and 17500, et seq., for breach of the Song-Beverly Consumer
9 Warranty Act (“Song-Beverly Act”), for breach of warranty pursuant to

10 Commercial Code §2313 and pursuant to the Consumer Legal Remedies Act

11 (“CLRA”), California Civil Code §1750.

12 8. Plaintiff seeks actual and/or compensatory damages; restitution;

13 equitable relief, including the replacement and/or recall of the defective iPhone4;

14 costs and expenses of litigation, including attorneys’ fees; and all additional and

15 further relief that may be available. Plaintiff reserves the right to amend his

16 Complaint to add additional relief as permitted under the CLRA or other applicable

17 law.

18 II. THE PARTIES

19 9. Plaintiff TIETZE, is a citizen of the State of California and the United

20 States of America, who maintains a residence in Marin County, California, first

21 purchased a iPhone4 on June 24, 2010. Shortly after purchase, TIETZE noticed

22 that he had problems with reception, dropped calls and inconsistent ability to make

23 use of his iPhone4.

24 10. Defendant, APPLE, INC. (“APPLE”) is a California corporation with

25 its executive offices and principal place of business and corporate headquarters in

26 Cupertino, California.

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CLASS ACTION COMPLAINT -4-

 1 III. JURISDICTION AND VENUE
2 11. This case is subject to original jurisdiction in this court pursuant to the
3 Class Action Fairness Act of 2005. Pub. L. No. 109-2, 119 Stat. 4 (codified in

4 scattered section of 28 U.S.C.)(“CAFA”) because at least one member of the

5 proposed class has a different citizenship from a defendant and the total matter in

6 controversy exceeds $5,000,000 Thus, this court has subject matter jurisdiction

7 over this action pursuant to 28 U.S.C. §1332. Venue is proper in the Northern

8 District of California pursuant to 28 U.S.C. §1391 because this District is the

9 district in which defendant APPLE is located and a District in which a substantial

10 part of the events or omissions giving rise to the claim occurred. Plaintiffs are

11 informed, believe, and thereon allege that defendant APPLE’s employees and/or

12 agents responsible for the advertising, marketing and/or promotional literature,

13 including the product packaging for the subject products are located in this judicial

14 district and/or the decisions concerning the design, manufacture, marketing and

15 advertising emanated from, or were authorized and/or approved by Defendant’s

16 corporate officers, executives and employees located in this judicial district

17 12. INTRADISTRICT ASSIGNMENT - Pursuant to Civil Local Rule

18 3-2(e), this case shall be assigned to the San Jose Division as it arises from Santa

19 Clara County.

20 IV. CLASS ACTION ALLEGATIONS

21 13. Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and
22 Fed. R. Civ. P. 23(b)(3) on behalf of himself and the following Nationwide Class:

23
All persons or entities within the United States who purchased an
Apple iPhone 4 since June 7, 2010. Excluded from this Class are
24 Apple, Inc. and their affiliates, employees or agents, or persons or
25
entities who distribute or sell the Apple iPhone 4.
14. The members of the Class are so numerous that joinder of all
26
members would be impracticable. Plaintiff estimates that there are more than 1.7
27

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CLASS ACTION COMPLAINT -5-

 1 million purchasers of the iPhone4 who have suffered unreasonably poor reception

2 and dropped calls. FRCP 23(a)(1).

3 15. There are questions of law and fact common to the members of the
4 Class that predominate over any questions affecting only individual members

5 (FRCP 23(a)(3)), including as it relates to the iphone4 antenna, case design, and

6 related software:

7 ! Whether the iPhone4 reception fails at unacceptably high rates, are

8 inherently defective and are not of merchantable quality.
9 ! Whether Defendant made false and/or misleading statements of fact to
10 the Class and the public concerning the defects inherent in the iPhone4.
11 ! Whether Defendant knew, or were reckless in not knowing, that their
12 statements about the performance, quality, and reliability of the
13 iPhone4were false and/or misleading.
14 ! Whether Defendant concealed from Plaintiff, the Class and the public
15 that the iPhone4s fail or degrade at unacceptably high rates, are
16 inherently defective and are not of merchantable quality.
17 ! Whether Defendant has undertaken a common business practice of
18 producing and selling to the public iPhone4s that fail to have reasonable
19 antenna reception and related “reception” software, as Defendant
20 advertised and otherwise represented.
21 ! Whether the iPhone4s fail to conform to Apple’s product specifications,
22 which were published and advertised to Plaintiffs, the Class and the
23 public.
24 ! Whether Defendant concealed from Plaintiffs, the Class and the public
25 that the iPhone4s do not conform to Apple’s product specification.
26

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CLASS ACTION COMPLAINT -6-

 1 ! Whether Defendant’s false and/or misleading statements of fact and their
2 concealment of material fact regarding the performance and reliability of
3 iPhone4 were likely to deceive the public.
4 ! Whether, by the misconduct set forth in this Complaint, Defendant has
5 engaged in unfair or unlawful business practices with respect to the
6 advertising, marketing and sale of the iPhone4.
7 ! Whether, by the misconduct as set forth herein, Defendant has engaged in
8 unfair, deceptive, untrue or misleading advertising of the iPhone4.
9 ! Whether Defendant breached the implied covenant of good faith and fair
10 dealing with Plaintiff, the class, and the public.
11 ! Whether Defendant was unjustly enriched by its conduct.
12 ! Whether Defendant has breached its warranties to Plaintiff and the Class.
13 ! Whether, as a result of Defendant’s misconduct, Plaintiff and the Class
14 are entitled to damages, restitution, equitable relief, punitive damages,
15 and/or other damages and relief, and, if so, the amount and nature of such
16 relief.
17 ! whether Defendant’s conduct violates Cal. Bus. & Prof. Code § 17200;
18 ! whether Defendant’s conduct violates Cal. Bus. & Prof. Code § 17500;
19 ! whether Defendant’s breached the warranties alleged;
20 ! whether Defendant’s conduct constitutes negligence;
21 ! whether Defendant’s conduct violates California’s Consumer Legal
22 Remedies Act;
23 ! whether Defendant concealed and did not disclose the defects in the
24 iPhone4 reception capabilities;
25 16. Plaintiff’s claims are typical of the claims of the members of the
26 Class. Plaintiff has no interests antagonistic to those of the Class and are subject to

27 no unique defenses. FRCP 23(a)(3)

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CLASS ACTION COMPLAINT -7-

 1 17. Plaintiff will fairly and adequately protect the interests of the Class
2 and has retained attorneys experienced in class and complex litigation. There are

3 no material conflicts between Plaintiff’s claims and those of absent Class members

4 that would make class certification inappropriate. Counsel for Plaintiff is

5 experienced in complex class action litigation and will vigorously assert Plaintiff’s

6 claims and those of the members of the Class in conformance with FCRP 23(a)(4).

7 18. Pursuant to FRCP 23(b)(3), a class action is superior to other available

8 methods for the fair and efficient adjudication of this controversy for the following
9 reasons:

10 ! It is economically impractical for each member of the Class to

11 prosecute individual actions.
12 ! The Class is readily definable.
13 ! Prosecution as a class action will eliminate the possibility of
14 repetitious litigation.
15 ! A class action will enable claims to be handled in an orderly
16 and expeditious manner.
17 ! A class action will save time and expense and will ensure
18 uniformity of decisions.
19 ! Plaintiff does not anticipate any difficulty in the management of
20 this litigation as a class action.
21 19. Santa Clara County, California, as the site of APPLE’s headquarters
22 and the place where all significant decision-making occurred with respect to the

23 iPhone4 design and production, is the center of gravity for this action such that it is

24 appropriate and consistent with existing law to certify the class of consumers

25 proposed in the Complaint to be litigated in this District.

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CLASS ACTION COMPLAINT -8-

 1
V. CALIFORNIA C.C.P. §382 COMMON OR GENERAL INTEREST
ALLEGATIONS
2
20. In addition to asserting class action claims in this action, Plaintiff also
3
asserts non-class action claims on behalf of the common or general interest to sue
4
for the benefit of all in cases where the parties are numerous, and it is
5
impracticable to bring them all before the court pursuant to C.C.P. §382. The
6
purpose of such claims is to require Defendant to disgorge and restore all monies
7
wrongfully obtained by Defendant through their false advertising and unfair
8
business practices. A common or general interest action is necessary and
9
appropriate because Defendant has engaged and continues to engage in the
10
wrongful acts and false advertising described herein as a general business practice.
11
A case may be brought under C.C.P. §382 without a class being certified or where
12
class certification is denied as long as the case involves a question of the common
13
or general interest. To the extent to which this court finds that it has no jurisdiction
14
over non-class common or general interest claims pursuant to C.C.P. §382, such
15
claims should be dismissed without prejudice for refilling in state court.
16

17 VI. DEFENDANT’S FALSE STATEMENTS TO THE PUBLIC AND

PLAINTIFF’S ACTUAL EXPERIENCE
18
21. The purported advantage of an iPhone4 is that the new antenna design
19
improved call quality and reception, and made no reference to the necessity of
20
holding the phone in any particular position or to spend more money on a case to
21
mitigate reception problems.
22
22. Defendant represented that one can have an effective and powerful
23
mobile communication device with multiple functions and applications.
24
23. Defendant represented and advertised the iPhone4 as being an
25
exceptionally powerful and useful mobile device.
26
24. Defendant has consistently misrepresented the quality and reliability
27
of the iPhone4 reception capability and related software.
28

CLASS ACTION COMPLAINT -9-

 1 25. The harm caused by Defendant’s false and misleading statements and
2 omissions grossly outweigh any benefit that could be attributed to them.

3 26. Defendant is and has been aware of the scope of the problems with the
4 iPhone4 but has failed to take substantial corrective action. Defendant has taken

5 only minimal action in response to consumer complaints including for example

6 advising users to hold the phone differently to purchase a case.

7 27. Plaintiff’s actual experience with the iPhone4 has been consistently
8 poor reception and dropped calls, large fluctuations in the manifestation of “bars”
9 related to signal quality, and related excessive heat production and short battery

10 life.

11
VII. NON-WAIVABILITY OF THE PROTECTIONS PROVIDED BY
12 CALIFORNIA LAW
13 28. Under a number of California consumer statutes and equitable
14 provisions the consumer product protections of California law are unwaivable by

15 the use of any shrink-wrap warranty limitations. For example, the Song-Beverly

16 Act states expressly:

17 Any waiver by the buyer of consumer goods of the provisions of this

18 chapter, except as expressly provided in this chapter, shall be deemed
19 contrary to public policy and shall be unenforceable and void.
20 Similarly, the CLRA §1751 states expressly:

21 Any waiver by a consumer of the provisions of this title is contrary to

22 public policy and shall be unenforceable and void.
23 29. Unless notice is provided to the Class, and a recall instituted, most
24 other users of the iPhone4 will eventually suffer the same fate, at considerable cost,

25 expense and loss as Plaintiff has suffered and continue to suffer to date.

26

27

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CLASS ACTION COMPLAINT - 10 -

 1 VIII. CAUSES OF ACTION
2
A. First Cause of Action for Violation of Bus. & Prof. Code
§17200 by Plaintiff Individually, as a Class Action and on
3 Behalf of the Common or General Interest
4 30. Plaintiff realleges and incorporates the above allegations by reference
5 as if set forth fully herein.

6 31. Plaintiff brings this cause of action on behalf of himself, on behalf of

7 the Class and on behalf of the common or general interest. Plaintiff has suffered

8 injury in fact and lost money or property as a result of such unfair competition.
9 32. Defendant has engaged in unfair, unlawful and fraudulent business
10 practices as set forth above.

11 33. By engaging in the above-described acts and practices, Defendant has

12 committed one or more acts of unfair competition within the meaning of Bus. &

13 Prof. Code §17200, et seq.

14 34. Defendant’s acts and practices have and/or are likely to deceive
15 members of the consuming public.

16 35. Defendant’s acts and practices are unlawful because they violate Civ.
17 Code §§1572, 1709, 1710, 1770(a)(5), 1770(a)(7) and 1770(a)(9). Defendant’s

18 acts and practices are also unlawful because they violate Bus. & Prof. Code

19 §17500, et seq. Specifically, Defendant marketed and sold the iPhone4 in a

20 defective condition and deceptively failed to disclose their defects as described

21 above. Said marketing and sales, including said omissions, were material and

22 substantial. Defendant’s acts and practices are also unlawful because they violate

23 the Song-Beverly Act, Civ. Code §1790, et seq.

24 36. Plaintiff, on behalf of himself, on behalf of the Class and on behalf of

25 the common or general interest, seek an order of this Court awarding restitution,

26 disgorgement, injunctive relief and all other relief allowed under §17200, et seq.,

27 plus interest, attorneys’ fees and costs pursuant to, inter alia, C.C.P. §1021.5.

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CLASS ACTION COMPLAINT - 11 -

 1 37. Plaintiff meets the standing requirements of C.C.P. §382 to bring this
2 cause of action because, among other reasons, the question is one of a common or

3 general interest, is a question of many persons and/or the parties are numerous and

4 it is impracticable to bring them all before the Court.

5
B. Second Cause of Action for Violation of Bus. & Prof. Code
6 §17500 by Plaintiff Individually, as a Class Action and on
7 Behalf of the Common or General Interest
38. Plaintiff realleges and incorporates the above allegations by reference
8
as if set forth fully herein.
9
39. Plaintiff brings this cause of action on behalf of himself, on behalf of
10
the Class and on behalf of the common or general interest. Plaintiff has suffered
11
injury in fact and have lost money or property as a result of Defendant’s violation
12
of Bus. & Prof. Code §17500, et seq.
13
40. Beginning on or before June 7, 2010, Defendant engaged in
14
advertising and marketing to the public and offered the iPhone4 for sale throughout
15
the United States, including California.
16
41. Defendant has engaged in the advertising and marketing alleged
17
herein with an intent to directly or indirectly induce the purchase of the iPhone4.
18
42. Defendant’s advertisements and marketing representations regarding
19
the technical and other characteristics of the iPhone4 are false, misleading and
20
deceptive as set forth more fully above.
21
43. At the time Defendant made and disseminated the statements alleged
22
herein, it knew or should have known that the statements were untrue or
23
misleading, and acted in violation of Bus. & Prof. Code §17500, et seq.
24
44. Defendant actively concealed its knowledge that the iPhone4
25
contained inherent defects.
26

27

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CLASS ACTION COMPLAINT - 12 -

 1 45. Plaintiff has been harmed. Plaintiff, on behalf of himself, on behalf of
2 the Class and on behalf of the common or general interest, seeks restitution,

3 disgorgement, injunctive relief and all other relief allowable under §17500, et seq.

4 46. Plaintiff meets the standing requirements of C.C.P. 382 to bring this
5 cause of action because, among other reasons, the question is one of a common or

6 general interest, is a question of many persons and/or the parties are numerous and

7 it is impracticable to bring them all before the Court.

8
9
C. Third Cause of Action for Breach of Express Warranty by
Plaintiffs Individually and on Behalf of all Others Similarly
10 Situated
11 47. Plaintiff realleges and incorporate the above allegations by reference
12 as if set forth fully herein at length.

13 48. Under the explicit terms of Defendant’s warranty, each iPhone4 came
14 with an express warranty.

15 49. Defendant’s written warranty stated that each iPhone4 was free of
16 defects in materials and workmanship and conformed to Defendant’s product

17 specifications.

18 50. Defendant breached their express warranties, as set forth above, by

19 supplying the iPhone4 in condition where they do not perform the most basic and

20 essential function of a hand-held phone.

21 51. Defendant has received, upon information and belief, hundreds of

22 complaints and other notices from its customers world-wide advising Defendant of

23 the defects in the iPhone4, including many from California residents and residents

24 of the United States. Despite this notice and Defendant’s knowledge, Defendant

25 continues to sell and/or replace defective iPhone4s with similarly defective

26 iPhone4s.

27

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CLASS ACTION COMPLAINT - 13 -

 1 52. Applying any warranty limitation to avoid the need to repair this
2 particular defect would be unconscionable in that, inter alia, the iPhone4 contain

3 an inherent defect that was already present at the time of purchase and Defendant

4 knew or was reckless in not knowing about this defect, which could not be

5 discovered by Plaintiffs and members of the Class at the time of purchase, and

6 purchasers lacked any meaningful choice with respect to the warranty terms.

7 53. As a result of Defendant’s breach of express warranty, Plaintiffs and

8 the Class have suffered damages in an amount to be determined at trial.
9
D. Fourth Cause of Action for Breach of the Song-Beverly Act
10 by Plaintiff Individually and on Behalf of all Others
11 Similarly Situated
54. Plaintiff realleges and incorporate the above allegations by reference
12
as if set forth fully herein.
13
55. Plaintiff asserts the third Cause of Action individually, on behalf of
14
the Class and on behalf of the common or general interest for breach of implied
15
warranty under the Song-Beverly Act, Civ. Code §1790, et seq.
16
56. The iPhone4s are “consumer goods” within the meaning of Civ. Code
17
§1791(a).
18
57. Defendant’s implied warranty of merchantability arose out of and/or
19
were related to the sales of the iPhone4.
20
58. As set forth more fully above, Defendant has failed to comply with its
21
obligations under its implied warranty of merchantability.
22
59. Plaintiff and the Class have suffered and will continue to suffer
23
damages as a result of Defendant’s failure to comply with its warranty obligations.
24
Accordingly, Plaintiff and the Class are entitled to recover such damages under the
25
Song-Beverly Act, including damages pursuant to Civ. Code §§1791.1(d) and
26
1974.
27

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CLASS ACTION COMPLAINT - 14 -

 1 60. Defendant’s breaches of warranty, as set forth above, were willful.
2 Accordingly, a civil penalty should be imposed upon Defendant in an amount not

3 to exceed twice the amount of actual damages.

4
E. Fifth Cause of Action for Violation of the CLRA by Plaintiff
5 Individually, on Behalf of the Common or General Interest
6 Pursuant to the Standing Provisions of C.C.P. §382 and as a
Class Action on Behalf of all Others Similarly Situated.
7
61. Plaintiff realleges and incorporates the above allegations by reference
8
as if set forth fully herein.
9
62. Plaintiff brings this claim individually and on behalf of the Class
10
against Defendant.
11
63. Defendant has engaged in deceptive practices, unlawful methods of
12
competition and/or unfair acts as defined by Civ. Code §1750, et seq. to the
13
detriment of Plaintiff, members of general public and the Class. Plaintiff, the
14
general public and members of the Class have suffered harm as a proximate result
15
of the violations of law and wrongful conduct of Defendant alleged herein.
16
64. Defendant intentionally, knowingly and unlawfully perpetrated harm
17
upon Plaintiff by the above described facts. To wit, Defendant’s actions in selling
18
defective products and failing to remedy these defects have violated the following
19
provisions of the CLRA:
20
(a) Civil Code §1770(a)(5): Representing that goods or services
21
have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities
22
which they do not have.
23
(b) Civil Code §1770(a)(7): Representing that goods or services
24
are of a particular standard, quality or grade, or that goods are of a particular style
25
or model, if they are of another.
26
(c) Civil Code §1770(a)(9): Advertising goods or services with
27
intent not to sell them as advertised.
28

CLASS ACTION COMPLAINT - 15 -

 1 (d) Civil Code §1770(a)(14): Representing that a transaction
2 confers or involves rights, remedies or obligations which it does not have or

3 involve, or which are prohibited.

4 (e) Civil Code §1770(a)(19): Inserting an unconscionable provision

5 in the contract.

6 65. Defendant’s policies and practices are unlawful, unethical, oppressive,

7 fraudulent and malicious. The gravity of the harm to all consumers and to the

8 general public from Defendant’s policies and practices far outweighs any
9 purported utility those policies and practices have.

10 66. Pursuant to Civ. Code §1780(a), Plaintiff seeks an order enjoining

11 Defendant from engaging in the methods, acts or practices alleged herein.

12 67. Pursuant to Civ. Code §1782, if Defendant do not rectify its illegal
13 acts within 30 days, Plaintiff intend to amend this Complaint to add claims for:

14 (a) actual damages;

15 (b) restitution of money to Plaintiff, the general public and Class
16 members;

17 (c) punitive damages;

18 (d) attorneys’ fees and costs; and
19 (e) other relief that this Court deems proper.
20 IX. Prayer for relief
21 68. Wherefore, Plaintiff, on behalf of himself, all others similarly situated
22 and the general public, pray for judgment against Defendant as follows:

23 ! An order certifying this case as a class action and appointing

24 Plaintiff and its counsel to represent the Class.
25 ! An injunction against Defendant selling, directly or indirectly,
26 defective iPhone4 and/or other equitable relief according to
27 proof.
28

CLASS ACTION COMPLAINT - 16 -

 1 ! Restitution and disgorgement of all amounts obtained by
2 Defendant as a result of its misconduct, together with interest
3 thereon from the date of payment, to the victims of such
4 violations.
5 ! Actual damages for injuries suffered by Plaintiff and the Class.
6 ! Compensatory money damages according to proof.
7 ! Punitive damages.
8 ! Attorneys’ fees and costs.
9 ! An order requiring Defendant to immediately cease its wrongful
10 conduct as set forth above; enjoining Defendant from
11 continuing to falsely market and advertise, conceal material
12 information and conduct business via the unlawful and unfair
13 business acts and practices complained of herein; ordering
14 Defendant to engage in a corrective notice campaign; and
15 requiring Defendant to implement a full replacement or repair
16 program of all defective iPhone4s at issue or, in the alternative,
17 to refund to Plaintiff and all members of the Class the funds
18 paid to Defendant for the defective iPhone4s; and requiring
19 Defendant to pay for reasonable attorneys’ fees and costs of
20 prosecuting this action.
21 ! For statutory prejudgment interest.
22 ! For such other relief as this Court may deem just and proper.
23 ///

24 ///

25 ///

26 ///

27

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CLASS ACTION COMPLAINT - 17 -

 1 X. JURY DEMAND
2 Plaintiff demand a trial by jury.
3

4 DATED: July 2, 2010 ROTHKEN LAW FIRM

5

6 _____________________________
7
By: Ira P. Rothken, Esq., (State Bar #160029)
Attorney for Plaintiff
8 STEVE TIETZE
9
ROTHKEN LAW FIRM
10 3 Hamilton Landing, Ste 280
11 Novato, CA 94949
Telephone: (415) 924-4250
12 Facsimile: (415) 924-2905
13 ira@techfirm.com

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CLASS ACTION COMPLAINT - 18 -

 1
CERTIFICATION PURSUANT TO CIVIL L.R. 3-16

2
Pursuant to Civil L.R. 3-16, the undersigned certifies that the following
3 listed persons, associations of persons, firms, partnerships, corporations (including

4 parent corporations) or other entities (i) have a financial interest in the subject

5 matter in controversy or in a party to the proceeding, or (ii) have a non-financial

6 interest in that subject matter or in a party that could be substantially affected by

7 the outcome of this proceeding:

8 APPLE, INC., a California Corporation, and

9 AT&T, INC., a Delaware Corporation
10

11 Dated: July 2, 2010 ROTHKEN LAW FIRM

12

13
______________________________
By: Ira P. Rothken, Esq., (State Bar #160029)
14 Attorney for Plaintiff
15
STEVE TIETZE

16 ROTHKEN LAW FIRM

17 3 Hamilton Landing, Ste 280
Novato, CA 94949
18 Telephone: (415) 924-4250
19 Facsimile: (415) 924-2905
ira@techfirm.com
20

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CLASS ACTION COMPLAINT - 19 -