Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 1 of 67

1 David M. Birka-White (State Bar No. 85721)
dbw@birka-white.com
2 BIRKA-WHITE LAW OFFICES
178 E. Prospect Ave.
3 Danville, CA 94526
Telephone: (925) 362-9999
4 Facsimile: (925) 362-9970

5
Daniel C. Levin, Esquire (Pro Hac Vice to be submitted)
6 Charles E. Schaffer, Esquire (Pro Hac Vice to be submitted)
LEVIN SEDRAN & BERMAN
7 510 Walnut Street, Suite 500
Philadelphia, PA 19102
8 Tel: (215) 592-1500

9 Fax: (215) 592-4663

10 [Additional Counsel Listed on Signature Page]

11 Attorneys for Plaintiffs

12 IN THE UNITED STATES DISTRICT COURT
13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14 KHENDLE WILLIAMS, CYNTHIA STACY, CASE NO.
GENE SCHLAEFER, TRENT YOUNG,
15 ASHLEY ANTONUCCI, KRISTIN
CLASS ACTION COMPLAINT
16 EDGERLY, MELISSA KONCINSKY,
SANDRA MEROLA, DERRICK JURY TRIAL DEMANDED
17 MARZETTE, RUTH BEAUCHAN,
DANIELLE SANGUEDOLCE, DENNIS
18 JOHNSON, KELLY SCHULZE, CHARLES
SAADIQ, SUZANNE CARTER, KELLY
19 JANKOWSKI, TIFFANY WILLIAMS,

20 NOELLE BOEHME, JENIFER KACHIK,
CRYSTAL SALDANA, RYAN WARD,
21 PATTY BURRISS, CHARLENE LOWERY,
MARGIE CLEVELAND, LILLIE DIAZ,
22 CRAIG MOORE, HEATHER SCHWARTZ,
ANDREW YASHCHUK, and JOSHUA
23 MOSBY, individually and on behalf of all

24 others similarly situated,

25 Plaintiffs,
vs.
26
APPLE, INC.,
27 Defendant.
28

.
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 2 of 67

1 Plaintiffs Khendle Williams, Cynthia Stacy, Gene Schlaefer, Trent Young, Ashley

2 Antonucci, Kristin Edgerly, Melissa Koncinsky, Sandra Merola, Shakena Harrison, Brandi White,

3 Derrick Marzette, Ruth Beauchan, Danielle Sanguedolce, Dennis Johnson, Kelly Schulze, Charles

4 Saadiq, Suzanne Carter, Kelly Jankowski, Tiffany Williams, Noelle Boehme, Jenifer Kachik,

5 Crystal Saldana, Ryan Ward, Patty Burriss, Charlene Lowery, Margie Cleveland, Lillie Diaz,

6 Craig Moore, Heather Schwartz, Andrew Yashchuk, Joshua Mosby (“Plaintiffs”), individually and

7 on behalf of all others similarly situated, by and through their attorneys, file this Consolidated

8 Amended Class Action Complaint against Defendant Apple, Inc. (“Apple” or “Defendant”). The

9 following allegations are based on personal knowledge as to Plaintiffs’ own conduct and the

10 investigation conducted by their counsel, and documents publicly available through Apple and/or

11 about Apple and the relevant product(s) at issue.

12 SUMMARY OF THE ACTION

13 1. This is a consumer class action alleging that Apple failed to disclose to Plaintiffs

14 that Apple’s iPhone operating system (“iOS”) would materially degrade the operation of their

15 iPhone 6, 6 Plus, 6s, 6s Plus, SE, 7, or 7 Plus models smartphones (hereinafter and collectively

16 “iPhones”) by reducing (“throttling”) their processor speeds in certain circumstances, including

17 when their non-user replaceable batteries lost storage capacity after multiple charge and discharge

18 cycles. As detailed herein, Apple surreptitiously throttled the processor speeds of iPhones to mask

19 the manifestation of sudden shutdowns that iPhones with degraded batteries were experiencing.

20 Plaintiffs hereinafter refer to this surreptitious throttling – and its causes and impacts – as the

21 “throttling defect”.

22 2. Though Apple touted the iPhones as premium and durable flagship smartphones

23 with high performance, it knew that iPhone batteries would age over time and become unable to

24 provide the electrical current necessary to prevent the phones from seemingly random shutdowns

25 during routine operation. Despite this knowledge, Apple sealed the batteries within the iPhones and

26 concealed the throttling defect from consumers.
27 3. Apple then induced owners of iPhones to apply Apple-supplied software updates

28 (“iOS updates”) to their phones, which promised a variety of usability and security upgrades while

1
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 3 of 67

1 surreptiously and materially throttling the processor speed of iPhones with reduced-capacity

2 batteries. Apple concealed this change, and Plaintiffs and other iPhone owners were left with

3 premium devices that were intentionally hobbled by Apple without any means of knowing that the

4 throttling defect could be remedied by the replacement of the degraded battery with a new battery

5 (which would cost far less than the price of a new iPhone). Defendant then unjustly profited on this

6 omission by reaping the benefit of increased sales of new iPhones from customers who were forced

7 to replace their old and inexplicably throttled iPhones with new iPhones. Indeed, in the first quarter

8 of 2017 (when Apple released the processor-throttling update), Apple’s iPhone 7 became the best-

9 selling smartphone in the world.1

10 4. The throttling defect significantly impairs the operability of the phones when it,

11 along with its symptoms, manifests.

12 5. The average American replaces his or her cell phone only every 30 months. 2 The

13 defect and its problems cause the iPhones to fail well within this period of time.

14 6. As a result of these failures in iPhones, and the monetary costs associated with

15 repairs and replacements, Plaintiffs and Class members have suffered injuries in fact, incurred

16 damages, and have otherwise been harmed by Defendant’s conduct.

17 7. Accordingly, Plaintiffs seek redress for Defendant’s breach of implied warranties

18 and violations of numerous federal and state consumer protection laws. Plaintiffs also seek money

19 damages and equitable relief for Defendant’s conduct described herein.

20

21
1
22 http://appleinsider.com/articles/17/05/10/apples-iphone-7-was-worlds-best-selling-smartphone-in-
first-quarter-of-2017
23 2
Thomas Gryta, Americans Keep Their Cellphones Longer, Wall Street Journal (Apr. 18, 2016,
24 3:22 PM), https://www.wsj.com/articles/americans-keep-their-cellphones-longer-1461007321 (last
accessed Jan. 8, 2018; Andrew Meola, People Are Taking Longer to Upgrade Their Smartphones,
25 Business Insider (June 30, 3016, 2:16 PM), http://www.businessinsider.com/people-are-taking-
longer-to-upgrade-their-smartphones-2016-6 (last accessed Jan. 8, 2018); see also CE Product Life
26 Cycle study, https://www.cta.tech/News/Blog/Articles/2014/September/The-Life-Expectancy-of-
27 Electronics.aspx (consumers expect smartphones to last 4.7 years on average) (last accessed Jan. 8,
2018).
28

2
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 4 of 67

1 PARTIES

2 A. Plaintiffs

3 8. At all relevant times, Khendle Willaims was a citizen of the United States, residing

4 in Pike Road, Alabama.

5 9. At all relevant times, Cynthia Stacy was a citizen of the United States, residing in

6 Ward, Arkansas.

7 10. At all relevant times, Gene Schlaefer was a citizen of the United States, residing in

8 San Tan Valley, Arizona.

9 11. At all relevant times, Trent Young was a citizen of the United States, residing in

10 Arizona.

11 12. At all relevant times, Halee Dion was a citizen of the United States, residing in Los

12 Angeles, California.

13 13. At all relevant times, Ashley Antonucci was a citizen of the United States, residing

14 in Ansonia, Connecticut.

15 14. At all relevant times, Kristin Edgerly was a citizen of the United States, residing in

16 Ridgefield, Connecticut.

17 15. At all relevant times, Melissa Koncinsky was a citizen of the United States, residing

18 in Preston, Connecticut

19 16. At all relevant times, Sandra Merola was a citizen of the United States, residing in

20 West Brook, Connecticut.

21 17. At all relevant times, Derrick Marzette was a citizen of the United States, residing in

22 Fort Gordon, Georgia.

23 18. At all relevant times, Ruth Beauchan was a citizen of the United States, residing in

24 Ocean View, Hawaii.

25 19. At all relevant times, Danielle Sanguedolce was a citizen of the United States

26 residing in Methuen, Massachusetts.
27 20. At all relevant times, Dennis Johnson was a citizen of the United States, residing in

28 Brooklyn Park, Maryland.

3
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 5 of 67

1 21. At all relevant times, Kelly Schulze was a citizen of the United States, residing in

2 Baltimore, Maryland.

3 22. At all relevant times, Charles Saadiq was a citizen of the United States, residing in

4 Southfield, Michigan.

5 23. At all relevant times, Suzanne Carter was a citizen of the United States, residing in

6 Painesville, Ohio.

7 24. At all relevant times, Kelly Jankowski was a citizen of the United States, residing in

8 Canfield, Ohio.

9 25. At all relevant times, Tiffany Williams was a citizen of the United States, residing in

10 Columbus, Ohio.

11 26. At all relevant times, Noelle Boehme was a citizen of the United States, residing in

12 Pittsburgh, Pennsylvania.

13 27. At all relevant times, Jenifer Kachik was a citizen of the United States, residing in

14 Oil City, Pennsylvania.

15 28. At all relevant times, Ryan Ward was a citizen of the United States, residing in

16 Philadelphia, Pennsylvania.

17 29. At all relevant times, Crystal Saldana was a citizen of the United States, residing in

18 Lancaster, Pennsylvania.

19 30. At all relevant times, Patty Burriss was a citizen of the United States, residing in

20 Anderson, South Carolina.

21 31. At all relevant times, Charlene Lowery was a citizen of the United States, residing in

22 Greer, South Carolina.

23 32. At all relevant times, Margie Cleveland was a citizen of the United States, residing

24 in Missouri City, Texas.

25 33. At all relevant times, Lillie Diaz was a citizen of the United States, residing in Oil

26 Spring, Texas.
27 34. At all relevant times, Craig Moore was a citizen of the United States, residing in

28 Conroe, Texas.

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CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 6 of 67

1 35. At all relevant times, Heather Schwartz was a citizen of the United States, residing

2 in Spring, Texas.

3 36. At all relevant times, Andrew Yashchuk was a citizen of the United States, residing

4 in Austin, Texas.

5 37. At all relevant times, Joshua Mosby was a citizen of the United States, residing in

6 Williamsburg, Virginia.

7 B. Defendant

8 38. Defendant Apple Inc. is a California corporation with an address at 1 Infinite Loop

9 Cupertino, CA 95014.

10 JURISDICTION AND VENUE

11 39. This Court has subject matter jurisdiction over this action under the

12 Class Action Fairness Act, 28 U.S.C. § 1332(d). The aggregated claims of the individual class

13 members exceed the sum or value of $5,000,000, exclusive of interests and costs. This is a putative

14 class action in which more than two-thirds of the proposed class members are citizens of states other

15 than the state in which Defendant is deemed to reside. In addition, this Court has supplemental

16 jurisdiction over Plaintiffs’ state law claims under 28 U.S.C. § 1367.

17 40. This Court has personal jurisdiction over Apple because its principal place of

18 business is within this District; Apple has sufficient minimum contacts in this District to render the

19 exercise of jurisdiction by this Court proper; Apple has consented to jurisdiction by registering to

20 conduct business in California; and Apple otherwise intentionally avails itself of the California

21 markets through promotion, sale, marketing and distribution of its iPhones in and from California,

22 which renders the exercise of jurisdiction by this Court proper and necessary as Apple is “at home”

23 in California.

24 41. Venue is proper in this Court under 28 U.S.C. § 1391 because Apple’s principal

25 place of business is within this District and a substantial part of the events or omissions giving rise

26 to the claims of at least one Plaintiff occurred in this District.
27

28

5
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 7 of 67

1 PLAINTIFF SPECIFIC ALLEGATIONS

2 A. Plaintiff Khendle Williams (Alabama)

3 42. Plaintiff Khendle Williams purchased a new iPhone 6 plus and a new iPhone 7 plus

4 at a Verizon location in or around Pike Road, Alabama both for approximately $999.99, paid

5 monthly in 2016. The fact that Defendant advertised it as a premium and durable flagship phone

6 with high performance was material to Plaintiff Khendle Williams and to other reasonable

7 consumers.

8 43. In or around September of 2017, almost exactly after a year of ownership, Plaintiff

9 Khendle Williams iPhones started suffering from processor throttling, by becoming slow and

10 sluggish to the point of becoming unusable.

11 44. Plaintiff Khendle Williams brought her phone to a Verizon Store, but was not

12 informed by an associate or Apple that the iOS update would result in significant throttling of her

13 phones.

14 45. Plaintiff never rooted her phones, or otherwise modified the original operating

15 system software. Plaintiff used and maintained her phones in a manner typical of a reasonable

16 consumer.

17 B. Plaintiff Cynthia Stacy (Arkansas)

18 46. Plaintiff Cynthia Stacy purchased two new iPhone 6 pluses at an AT&T location in

19 or around Ward, Arkansas for approximately $999.99, paid monthly in 2016. The fact that

20 Defendant advertised it as a premium and durable flagship phone with high performance was

21 material to Plaintiff Cynthia Stacy and to other reasonable consumers.

22 47. In or around September of 2017, almost exactly after one and a half years of

23 ownership, Plaintiff Cynthia Stacy’s iPhones started suffering from processor throttling, by

24 becoming slow and sluggish to the point of becoming unusable.

25 48. Plaintiff Cynthia brought her phones to the AT&T store, but was not informed by

26 the associates or Apple that the iOS update would result in significant throttling of her phones.
27 49. Plaintiff never rooted her phones, or otherwise modified the original operating

28 system software. Plaintiff used and maintained her phones in a manner typical of a reasonable

6
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 8 of 67

1 consumer.

2 C. Plaintiffs Gene Schlaefer and Trent Young (Arizona)

3 50. Plaintiff Gene Schlaefer purchased an iPhone 6 Plus in October, 2016. The battery

4 went completely dead and could not be replaced. Plaintiff replaced the phone on December 22,

5 2017 at a cost of $445.00 for an iPhone 7 Plus.

6 51. Plaintiff Trent Young purchased an iPhone 6S at the Apple Store in Arrowhead

7 Town Center in Glendale, Arizona. As a result of Defendants’ Conduct, Plaintiff thought his

8 battery was dead and had to purchase a new replacement phone at the Apple Store in Arrowhead

9 Town Center in Glendale, Arizona for $1,235.31.

10 52. Plaintiffs brought their phones to the store, but were not informed by the associates

11 or Apple that the iOS update would result in significant throttling of their phones.

12 53. Plaintiffs never rooted their phones, or otherwise modified the original operating

13 system software. Plaintiffs used and maintained their phones in a manner typical of a reasonable

14 consumer.

15 D. Plaintiff Halee Dion (California)

16 54. Plaintiff Halee Dion purchased a new iPhone 6 at Best Buy in or around 2016 on for

17 approximately $499.00 on payment. The fact that Defendant advertised it as a premium and durable

18 flagship phone with high performance was material to Plaintiff Halee Dion and to other reasonable

19 consumers.

20 55. In or around 2017, Plaintiff Halee Dion started suffering from processor throttling,

21 with the phone becoming slow and sluggish to the point of becoming unusable.

22 56. Plaintiff Halee Dion purchased a replacement phone on about January 10, 2018.

23 57. Plaintiff never rooted her phone or otherwise modified the original operating

24 software. Plaintiff used and maintained her phone in a manner typical of a reasonable customer.

25 E. Plaintiffs Ashley Antonucci, Kristin Edgerly, Melissa Koncinsky, and Sandra Merola

26 (Connecticut)
27 58. Plaintiff Ashley Antonucci, purchased a new iPhone 6 at a Verizon location in or

28 around Derby, Connecticut for approximately $699.99, paid monthly about two years ago. Plaintiff

7
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 9 of 67

1 Kristin Edgerly, purchased two new iPhone 6 and iPhone 6s at an Apple location in or around

2 Ridgefield, Connecticut for approximately $699.99, paid monthly about three years ago. Plaintiff

3 Melissa Koncinsky, purchased two new iPhone 6s’s at a Sprint location in or around Waterford,

4 Connecticut for approximately $699.99, paid monthly on October 2015. And, Plaintiff Sandra

5 Merola purchased two new iPhones a 6 plus two years ago and an iPhone 7 plus last year at an

6 Apple and Best Buy location in or around West Brook, Connecticut for approximately $699.99 each

7 phone, paid monthly on 2016 and 2017. The fact that Defendant advertised it as a premium and

8 durable flagship phone with high performance was material to Plaintiffs Ashley Antonucci, Kristin

9 Edgerly, Melissa Koncinsky, and Sandra Merola and to other reasonable consumers.

10 59. In or around September of 2017, after about 2-3 years of ownership, Plaintiffs

11 Ashley Antonucci, Kristin Edgerly, Melissa Koncinsky, and Sandra Merola’s iPhones started

12 suffering from processor throttling, by becoming slow and sluggish to the point of becoming

13 unusable.

14 60. Plaintiffs Ashley Antonucci, Kristin Edgerly, Melissa Koncinsky, and Sandra

15 Merola brought their phones to Verizon, T-Mobile, Apple, AT&T, and Best Buy stores, but they

16 were not informed by the associates or Apple that the iOS update would result in significant

17 throttling of their phones.

18 61. Plaintiffs never rooted their phones, or otherwise modified the original operating

19 system software. Plaintiffs used and maintained their phones in a manner typical of a reasonable

20 consumer.

21 F. Plaintiff Derrick Marzette (Georgia)

22 62. Plaintiff Derrick Marzette purchased a new iPhone 6 at a Verizon location in or

23 around Fort Gordon, for approximately $699.99, paid monthly in 2016. The fact that Defendant

24 advertised it as a premium and durable flagship phone with high performance was material to

25 Plaintiff Derrick Marzette and to other reasonable consumers.

26 63. In or around September of 2017, almost exactly after one year of ownership,
27 Plaintiff Derrick Marzette’s iPhone started suffering from processor throttling, by becoming slow

28 and sluggish to the point of becoming unusable.

8
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 10 of 67

1 64. Plaintiff Derrick Marzette brought his phone to the Verizon store, but was not

2 informed by the associates or Apple that the iOS update would result in significant throttling of his

3 phones.

4 65. Plaintiff never rooted his phone, or otherwise modified the original operating system

5 software. Plaintiff used and maintained his phone in a manner typical of a reasonable consumer.

6 G. Plaintiff Ruth Beauchan (Hawaii)

7 66. Plaintiff Ruth Beauchan purchased two new iPhone 6’s at an Apple location in or

8 around Fremont, California for approximately $699.99, paid monthly around 2014. The fact that

9 Defendant advertised it as a premium and durable flagship phone with high performance was

10 material to Plaintiff Ruth Beauchan and to other reasonable consumers.

11 67. In or around September of 2017, almost exactly after three years of ownership,

12 Plaintiff Ruth Beauchan’s iPhones started suffering from processor throttling, by becoming slow

13 and sluggish to the point of becoming unusable.

14 68. Plaintiff Ruth Beauchan brought her phones to the AT&T store, but was not

15 informed by the associates or Apple that the iOS update would result in significant throttling of her

16 phone.

17 69. Plaintiff never rooted her phone, or otherwise modified the original operating

18 system software. Plaintiff used and maintained her phone in a manner typical of a reasonable

19 consumer.

20 H. Plaintiff Danielle Sanguedolce (Massachusetts)

21 70. Plaintiff Danielle Sanguedolce purchased a new iPhone 6 at a Verizon location in or

22 around Methuen, Massachusetts for approximately $699.99, paid monthly about three years ago.

23 The fact that Defendant advertised it as a premium and durable flagship phone with high

24 performance was material to Plaintiff Danielle Sanguedolce and to other reasonable consumers.

25 71. In or around May or June of 2017, almost exactly about three years of ownership,

26 Plaintiff Danielle Sanguedolce’s iPhone started suffering from processor throttling, by becoming
27 slow and sluggish to the point of becoming unusable.

28

9
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 11 of 67

1 72. Plaintiff Danielle Sanguedolce brought her phone to the Verizon store, but was not

2 informed by the associates or Apple that the iOS update would result in significant throttling of her

3 phones.

4 73. Plaintiff never rooted her phone, or otherwise modified the original operating

5 system software. Plaintiff used and maintained her phone in a manner typical of a reasonable

6 consumer.

7 I. Plaintiffs Dennis Johnson and Kelly Schulze (Maryland)

8 74. Plaintiff Dennis Johnson purchased a new iPhone 6 at a T-Mobile location in or

9 around Brooklyn Park, Maryland for approximately $699.99, paid monthly in 2015. Plaintiff Kelly

10 Schulze purchased an iPhone 6 Plus on February 20, 2016 at a mall store. Plaintiff purchased a

11 new phone thereafter. The fact that Defendant advertised it as a premium and durable flagship

12 phone with high performance was material to Plaintiffs Dennis Johnson and Kelly Schulze and to

13 other reasonable consumers.

14 75. In or around of 2016, almost exactly after a one year of ownership, Plaintiffs Dennis

15 Johnson and Kelly Schulze’s iPhones started suffering from processor throttling, by becoming slow

16 and sluggish to the point of becoming unusable.

17 76. Plaintiffs Dennis Johnson and Kelly Schulze brought their phones to the AT&T

18 store, but were not informed by the associates or Apple that the iOS update would result in

19 significant throttling of their phones.

20 77. Plaintiffs never rooted their phones, or otherwise modified the original operating

21 system software. Plaintiffs used and maintained their phones in a manner typical of a reasonable

22 consumer.

23 J. Plaintiff Charles Saadiq (Michigan)

24 78. Plaintiff Charles Saadiq leased a new iPhone 6S from Sprint around November,

25 2017. The fact that Defendant advertised it as a premium and durable flagship phone with high-end

26 features was material to Plaintiff Charles Saadiq and to other reasonable consumers.
27 79. In or around November 25, 2017, almost exactly after a year of ownership, Plaintiff

28 Charles Saadiq’s iPhone started suffering from processor throttling, by becoming slow and sluggish

10
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 12 of 67

1 to the point of becoming unusable.

2 80. Plaintiff bought a new iPhone but was not informed by Apple that the iOS update

3 would result in significant throttling of his phone.

4 81. Plaintiff never rooted his phone, or otherwise modified the original operating system

5 software. Plaintiff used and maintained his phone in a manner typical of a reasonable consumer.

6 K. Plaintiffs Suzanne Carter, Kelly Jankowski, and Tiffany Williams (Ohio)

7 82. Plaintiff Suzanne Carter, purchased a new iPhone 6 at a Verizon location in or

8 around Painesville, Ohio for approximately $699.99, paid monthly about three years ago. Kelly

9 Jankowski, purchased two new iPhone 6s’s at a Sprint location in or around Canfield, Ohio for

10 approximately $999.99, paid monthly on October 2015. Tiffany Williams purchased two new

11 iPhones a 6 (2015) and a 7 plus (2016/2017) at an AT&T location in or around Columbus, Ohio for

12 approximately $699.99, each phone, paid monthly. The fact that Defendant advertised it as a

13 premium and durable flagship phone with high performance was material to Plaintiffs Suzanne

14 Carter, Kelly Jankowski, and Tiffany Williams and to other reasonable consumers.

15 83. In or around 2014 and September of 2017, almost exactly after about 2-4 years of

16 ownership, Plaintiffs Suzanne Carter, Kelly Jankowski, and Tiffany Williams’s iPhones started

17 suffering from processor throttling, by becoming slow and sluggish to the point of becoming

18 unusable.

19 84. Plaintiffs Suzanne Carter, Kelly Jankowski, and Tiffany Williams brought their

20 phones to Verizon, T-Mobile and AT&T stores, but they were not informed by the associates or

21 Apple that the iOS update would result in significant throttling of their phones.

22 85. Plaintiffs never rooted their phones, or otherwise modified the original operating

23 system software. Plaintiffs used and maintained their phones in a manner typical of a reasonable

24 consumer.

25 L. Plaintiffs Noelle Boehme, Jenifer Kachik, Ryan Ward, and Crystal Saldana

26 (Pennsylvania)
27 86. Plaintiff Noelle Boehme, purchased a new iPhone 6 at a Verizon location in or

28 around Pittsburgh, Pennsylvania for approximately $699.99, paid monthly about three years ago.

11
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 13 of 67

1 Jenifer Kachik, purchased a new iPhone 6s at a AT&T location in or around Cranberry,

2 Pennsylvania for approximately $999.99, paid monthly two years ago. Ryan Ward purchased two

3 new iPhone 6’s at a Verizon location in or around Philadelphia, Pennsylvania for approximately

4 $699.99 each phone, paid monthly on October 2015. Crystal Saldana purchased an iPhone. The

5 fact that Defendant advertised it as a premium and durable flagship phone with high performance

6 was material to Plaintiffs Noelle Boehme, Jenifer Kachik, Ryan Ward, and Crystal Saldana and to

7 other reasonable consumers.

8 87. In or around September of 2017, almost exactly after about 2 years of ownership,

9 Plaintiffs Noelle Boehme, Jenifer Kachik, Ryan Ward, and Crystal Saldana’s iPhones started

10 suffering from processor throttling, by becoming slow and sluggish to the point of becoming

11 unusable.

12 88. Plaintiffs Noelle Boehme, Jenifer Kachik, Ryan Ward, and Crystal Saldana brought

13 their phones to Verizon and AT&T stores, but they were not informed by the associates or Apple

14 that the iOS update would result in significant throttling of their phones.

15 89. Plaintiffs never rooted their phones, or otherwise modified the original operating

16 system software. Plaintiffs used and maintained their phones in a manner typical of a reasonable

17 consumer.

18 M. Plaintiff Patty Burriss and Charlene Lowery (South Carolina)

19 90. Plaintiff Patty Burriss purchased a new iPhone 7 at a Verizon location in or around

20 Spring, South Carolina for approximately $699.99, paid monthly in 2016. Charlene Lowery

21 purchased a new iPhone 6 at a Sprint location in or around Greer, South Carolina for approximately

22 $699.99, paid monthly in 2014. The fact that Defendant advertised it as a premium and durable

23 flagship phone with high performance was material to Plaintiffs Patty Burriss and Charlene Lowery

24 and to other reasonable consumers.

25 91. In or around September of 2017, almost exactly after a one through four years of

26 ownership, Plaintiffs Patty Burriss and Charlene Lowery iPhones started suffering from processor
27 throttling, by becoming slow and sluggish to the point of becoming unusable.

28

12
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 14 of 67

1 92. Plaintiffs Patty Burriss and Charlene Lowery brought their phones to the Verizon

2 and Sprint stores, but were not informed by the associates or Apple that the iOS update would

3 result in significant throttling of their phones.

4 93. Plaintiffs never rooted their phones, or otherwise modified the original operating

5 system software. Plaintiffs used and maintained their phones in a manner typical of a reasonable

6 consumer.

7 N. Plaintiffs Margie Cleveland, Lillie Diaz, Craig Moore, Heather Schwartz, and Andrew

8 Yashchuk (Texas)

9 94. Plaintiff Margie Cleveland, purchased a new iPhone 6 plus at an AT&T location in

10 or around Missouri, Texas for approximately $699.99, paid monthly about four years ago. Lillie

11 Diaz, purchased a new iPhone 6 at an AT&T location in or around Spring, Texas for approximately

12 $699.99, paid monthly in 2015. Craig Moore purchased an iPhone 6 at Sprint Store Conroe, Texas

13 for approximately $699.99, paid monthly in 2016. Plaintiff, Andrew Yashchuk purchased two

14 iPhone 6 Pluses. Plaintiff Heather Schwartz purchased an iPhone 6 and iPhone 7 in December,

15 2014 and 2016. The fact that Defendant advertised it as a premium and durable flagship phone

16 with high performance was material to Plaintiffs Margie Cleveland, Lillie Diaz, Craig Moore,

17 Andrew Yashchuk, and Heather Schwartz and to other reasonable consumers.

18 95. In or around September of 2017, almost exactly after about 2 years of ownership,

19 the iPhones of Plaintiff’s Margie Cleveland, Lillie Diaz, Craig Moore, Heather Schwartz, and

20 Andrew Yashchuk iPhones started suffering from processor throttling, by becoming slow and

21 sluggish to the point of becoming unusable.

22 96. In or around Fall of 2017 and January, 2018, almost exactly after about 2 years of

23 ownership, Plaintiffs Margie Cleveland, Lillie Diaz, Craig Moore, Heather Schwartz, and Andrew

24 Yashchuk iPhones started suffering from processor throttling, by becoming slow and sluggish to

25 the point of becoming unusable.

26 97. Plaintiffs Margie Cleveland, Lillie Diaz, Craig Moore, Andrew Yashchuk, and
27 Heather Schwartz brought their phones to Verizon and AT&T stores, but they were not informed

28 by the associates or Apple that the iOS update would result in significant throttling of their phones.

13
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 15 of 67

1 98. Plaintiffs never rooted their phones, or otherwise modified the original operating

2 system software. Plaintiffs used and maintained their phones in a manner typical of a reasonable

3 consumer.

4 O. Plaintiff Joshua Mosby (Virginia)

5 99. Plaintiff Joshua Mosby purchased a new iPhone 6 at a Verizon location in or around

6 Williamsburg, VA for approximately $699.99, paid monthly in 2014. The fact that Defendant

7 advertised it as a premium and durable flagship phone with high performance was material to

8 Plaintiff Joshua Mosby and to other reasonable consumers.

9 100. In or around September of 2017, almost exactly after four years of ownership,

10 Plaintiff Joshua Mosby’s iPhone started suffering from processor throttling, by becoming slow and

11 sluggish to the point of becoming unusable.

12 101. Plaintiff Joshua Mosby brought his phone to the Verizon store, but was not informed

13 by the associates or Apple that the iOS update would result in significant throttling of his phone.

14 102. Plaintiff never rooted his phone, or otherwise modified the original operating system

15 software. Plaintiff used and maintained his phone in a manner typical of a reasonable consumer.

16 COMMON FACTUAL ALLEGATIONS

17 A. Apple iPhones

18 103. Apple released the Class iPhones on the following dates in the United States:

19 Model(s) Release Date
20 iPhone 6, iPhone 6 Plus September 29, 2014
21 iPhone 6S, iPhone 6S Plus September 25, 2015
22 iPhone SE March 31, 2016
23 iPhone 7, iPhone 7 Plus September 16, 2016
24
104. Defendant marketed, promoted, and sold the iPhones as having high performance,
25

26 and prominently touted their high “desktop-class” processors, “blazing fast performance”, and
27 “most powerful chip ever in a smartphone”:

28

14
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 16 of 67

1 i. iPhone 6 and 6 Plus

2 Packed with innovative new technologies, iPhone 6 and iPhone 6 Plus include: the Apple-
designed A8 chip with second generation 64-bit desktop-class architecture for blazing fast
3
performance and power efficiency. . .
4
***
5 With second generation 64-bit desktop-class architecture, the all-new A8 chip offers faster
performance and is more energy efficient, delivering higher sustained performance with
6 great battery life. With Metal™, a new graphics technology in iOS 8, developers can take
performance of the A8 chip even further to bring console-class 3D games to iPhone. The
7
A8 chip also includes a new, powerful Apple-designed image signal processor that enables
8 advanced camera and video features.

9 https://www.apple.com/newsroom/2014/09/09Apple-Announces-iPhone-6-iPhone-6-Plus-The-

10 Biggest-Advancements-in-iPhone-History/ (last accessed on Jan. 9, 2018)

11 ii. Phone 6s and 6s Plus
12 A9. The most advanced chip ever in a smartphone.
13 iPhone 6s is powered by the custom-designed 64-bit A9 chip. It delivers performance once
found only in desktop computers. You’ll experience up to 70 percent faster CPU
14 performance, and up to 90 percent faster GPU performance for all your favorite graphics-
intensive games and apps.
15
***
16 A9. The most advanced chip ever in a smartphone.
17 The A9 chip brings a new level of performance and efficiency to iPhone 6s. Not only a
faster experience, but a better one. The A9 chip is capable of gaming console—class
18 graphics performance that makes games and other apps much richer and more immersive.

19 ***
64-bit desktop-class architecture.
20 The A9 chip is our third-generation chip with 64-bit architecture. It sits at the cutting edge
21 of mobile chips, improving overall CPU performance by up to 70 percent compared to the
previous generation. And boosting graphics performance by up to a staggering 90 percent
22 compared to the previous generation.

23 https://web.archive.org/web/20150928195109/http://www.apple.com/iphone-6s (last accessed on

24 Jan. 9, 2018)

25 iii. iPhone SE
26
iPhone SE offers exceptional performance with the same 64-bit A9 chip offered in iPhone
27 6s and iPhone 6s Plus for blazing fast speeds . . .

28 ***

15
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 17 of 67

1 The Most Powerful Phone with a Four-inch Display
iPhone SE takes a beloved iPhone design and reinvents it from the inside out, giving
2 customers a powerful, full-featured iPhone no matter which model they choose. The
64-bit A9 chip, introduced in iPhone 6s and iPhone 6s Plus, offers iPhone SE
3
customers two times faster CPU and three times faster GPU performance compared
4 to iPhone 5s, all with gains in energy efficiency for improved battery life.

5 https://www.apple.com/newsroom/2016/03/21Apple-Introduces-iPhone-SE-The-Most-Powerful-

6 Phone-with-a-Four-inch-Display/ (last accessed on Jan. 9, 2018)

7 iv. iPhone 7 and 7 Plus
8 A10 Fusion Chip
The most powerful chip ever in a smartphone.
9
iPhone 7 is supercharged by the most powerful chip ever in a smartphone. It’s not just faster
10 than any previous iPhone — it’s also more efficient. That’s because the A10 Fusion chip
uses an all-new architecture that enables faster processing when you need it, and the ability
11 to use even less power when you don’t. And with the longest battery life ever in an iPhone,
you can work at twice the speed of iPhone 6 and still enjoy more time between charges.
12

13 https://web.archive.org/web/20160930101947/http://www.apple.com/iphone-7/ (last accessed on

14 Jan. 9, 2018).

15 105. Apple’s performance claims were reinforced by benchmark speed and performance

16 tests conducted by third party testers, who published the testing results online and in print.

17 106. Defendant and authorized retailers sold iPhones, with the exception of the lower

18 priced iPhone SE, for $650 or more to millions of consumers throughout the United States,

19 including in the Plaintiffs’ home states.

20 107. Upon information and belief, Defendant disseminated iPhone marketing materials

21 from its California headquarters.

22 108. Defendant marketed, promoted, and advertised the iPhones as fully functioning

23 smartphones without defects, including but not limited to any faults in the processor throttling.

24 109. Plaintiffs and Class Members were reasonably induced to purchase iPhones based

25 on Apple’s representations that the iPhone was a premium and durable flagship phone with

26 desktop-class processors.
27 B. iPhone Batteries and Processors

28 110. Apple was among the first companies to sell a smartphone with non-user-

16
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 18 of 67

1 replaceable lithium ion batteries. Indeed, “before the iPhone, cell phones without user-replaceable

2 batteries were almost unheard of.” https://www.ifixit.com/blog/2011/01/20/apples-latest-

3 innovation-is-turning-planned-obsolescence-into-planned-failure/.

4 111. Lithium ion batteries work on ion movement between the positive and negative

5 electrodes. The primary measure of battery performance is capacity.

6 112. A Lithium ion battery’s capacity is degraded over time by discharge/recharge

7 cycles, elevated temperatures and aging. Apple represents that its battery is “designed to retain up

8 to 80% of its original capacity at 500 complete charge cycles.”

9 https://www.apple.com/batteries/service-and-recycling/

10 113. Testing done by a leading battery manufacturer, Cadex, indicates that batteries will

11 lose on average 10 – 15 % of their capacity after 250 full discharge cycles and the batteries

12 performed as expected:

13

14

15

16

17

18

19

20

21

22

23

24

25 Figure 1: Capacity drop as part of cycling. Eleven new Li-ion were tested on a Cadex
C7400 battery analyzer. All packs started at a capacity of 88–94% and decreased to 73–84%
26 after 250 full discharge cycles. The 1500mAh pouch packs are used in mobile phones.
27 http://batteryuniversity.com/learn/article/how_to_prolong_lithium_based_batteries (last accessed

28 on Jan. 10, 2018).

17
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 19 of 67

1 114. Accordingly, it is well known to smartphone manufacturers, including Apple, that

2 lithium ion batteries degrade as the number of discharge cycles increases.

3 115. Notwithstanding the forgoing, Apple chose to equip the iPhones with non-user

4 replacement sealed lithium ion batteries. Special skills and tools, including a pentalobe screwdriver,

5 are required to replace the lithium ion batteries in iPhones. Apple also chose to not sell

6 replacement batteries directly to consumers and instead requires consumers seeking a new battery

7 to pay for the battery and battery installation by an Apple employee.

8 116. All Apple iPhones run on a version of Apple’s iOS software. Apple’s iOS software

9 is developed, tested, and distributed by Apple through “over the air” updates, which can be

10 downloaded over Wi-Fi. When a new iOS update is released, users of iPhones receive a notification

11 on their phones, prompting them to download the iOS update. Apple does not permit iPhones to be

12 rolled back to prior versions of iOS. iOS updates are therefore permanent until Apple releases a

13 newer update.

14 117. In or around December 2016, owners of the iPhone 6 and 6 Plus and 6S and 6S Plus

15 reported unexpected iPhone shutdowns that Apple attributed to being caused “primarily by older

16 batteries—spikes in power draw could make these batteries ‘deliver power in an uneven manner,’

17 triggering a shutdown.” https://arstechnica.com/gadgets/2017/02/apple-says-ios-10-2-1-mostly-

18 fixes-unexpected-shutdowns-in-the-iphone-6-6s/ (last accessed January 10, 2018).

19 118. In or around January 2017, Apple released iOS 10.2.1, but the company did not

20 mention battery issues or shutdown issues in the release notes. Id. Instead, Apple represented in an

21 on-screen message to iPhone owners that iOS 10.2.1 contained “bug fixes and improve[d] the

22 security” of iPhones. Apple’s website similarly represented that iOS 10.2.1 provided security fixes.

23 https://support.apple.com/en-us/HT207482 (last accessed January 10, 2018).

24 119. Apple failed to disclose that iOS 10.2.1 materially slowed down and interrupted the

25 functionality of the following models of iPhones containing reduced-capacity batteries: iPhone 6,

26 iPhone 6 Plus, iPhone 6S, iPhone 6S Plus, and iPhone SE.
27 120. On December 2, 2017, Apple added the performance-throttling features to the

28 iPhone 7 and iPhone 7 Plus through iOS update 11.2. The release of iOS 11.2 was accompanied by

18
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 20 of 67

1 the following on-screen description: “iOS 11.2 introduces Apple Pay Cash to send, request and

2 receive money from friends and family with Apple Pay. This update also includes bug fixes and

3 improvements.” https://www.gottabemobile.com/5-things-to-know-about-the-ios-11-2-update/.

4 121. The following table lists the affected iPhone model, release date, throttling iOS

5 update name, and throttling iOS update release date:

6 iPhone Model iPhone Release Throttling iOS Throttling iOS
Date Update Name Update Release Date
7
6 and 6 Plus Sept. 2014 10.2.1 Jan. 2017
8

9 6S and 6S Plus Sept. 2014 10.2.1 Jan. 2017
10
SE Mar. 2016 10.2.1 Jan. 2017
11

12 7 and 7 Plus Sept. 2016 11.2 Dec. 2017
13

14 122. Apple had exclusive knowledge the impact of iOS 10.2.1 and 11.2 on the
15 performance of the iPhones, but failed to disclose this information to the Plaintiffs or putative class

16 members.

17 123. After the 10.2.1 update had been out for about a month, Apple admitted that it had
18 fixed 80 percent of the shutdown issues for iPhone 6S owners and 70% of the issues for iPhone 6

19 owners. Id.

20 124. At no time did Apple disclose that it was throttling the processor speed for iPhone 6
21 or iPhone 6S owners with older batteries.

22 125. After the update to iOS 10.2.1, many iPhone owners began to complain that they
23 were experiencing slowdowns in their phones. Id.; see also

24 https://www.reddit.com/r/iphone/comments/7inu45/psa_iphone_slow_try_replacing_your_battery/

25 (last accessed Jan. 10, 2018).

26 126. A Reddit user who experienced such a slowdown posted a report to the iPhone
27 subreddit stating that, after experiencing slowdown on their iPhone 6s, they replaced the battery

28 with a new one and saw significant performance improvements in Geekbench benchmark testing.

19
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 21 of 67

1 Geekbench benchmark testing measures processor performance, and “[i]ncludes updated CPU

2 workloads and new Compute workloads that model real-world tasks and applications. Geekbench is

3 a benchmark that reflects what actual users face on their mobile devices and personal computers.”

4 http://www.geekbench.com/index.html (last accessed Jan. 10, 2018).

5 127. Shortly after the publication of this Reddit post, a blog post from Geekbench

6 founder and developer John Poole addressed the controversy that had since erupted. Using his

7 access to Geekbench data from thousands of iPhones, Poole concluded that, with the release of iOS

8 10.2.1, “Apple introduced a change to limit performance when battery condition decreases past a

9 certain point.” https://www.geekbench.com/blog/2017/12/iphone-performance-and-battery-age/.

10 128. Poole posited that reduced iPhone performance in phones with reduced battery

11 capacity could be part of the sudden shutdown fix introduced with iOS 10.2.1, and noted that:

12 If the performance drop is due to the “sudden shutdown” fix, users will experience
reduced performance without notification. Users expect either full performance, or
13 reduced performance with a notification that their phone is in low-power mode. This fix
creates a third, unexpected state. While this state is created to mask a deficiency in
14
battery power, users may believe that the slowdown is due to CPU performance, instead
15 of battery performance, which is triggering an Apple introduced CPU slow-down. This
fix will also cause users to think, “my phone is slow so I should replace it” not, “my
16 phone is slow so I should replace its battery.” This will likely feed into the “planned
obsolescence” narrative.
17

18 Id.

19 129. Because Apple does not allow iPhone owners to revert their operating system to a

20 prior version, once an iOS update is applied, processor throttling is irreversible without

21 replacement of the battery or an update that removes the processor throttling.

22 130. On December 28, 2017, Apple admitted to throttling iPhone’s processors, stating in

23 part that:

24 How batteries age

25 All rechargeable batteries are consumable components that become less effective as
they chemically age and their ability to hold a charge diminishes. Time and the
26
number of times a battery has been charged are not the only factors in this chemical
27 aging process.

28

20
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 22 of 67

1 Device use also affects the performance of a battery over its lifespan. For example,
leaving or charging a battery in a hot environment can cause a battery to age faster.
2 These are characteristics of battery chemistry, common to lithium-ion batteries
across the industry.
3
A chemically aged battery also becomes less capable of delivering peak energy
4 loads, especially in a low state of charge, which may result in a device unexpectedly
shutting itself down in some situations.
5
Preventing unexpected shutdowns
6
About a year ago in iOS 10.2.1, we delivered a software update that improves power
7
management during peak workloads to avoid unexpected shutdowns on iPhone 6,
8 iPhone 6 Plus, iPhone 6s, iPhone 6s Plus, and iPhone SE. With the update, iOS
dynamically manages the maximum performance of some system components when
9 needed to prevent a shutdown. While these changes may go unnoticed, in some
cases users may experience longer launch times for apps and other reductions in
10 performance.
11
Customer response to iOS 10.2.1 was positive, as it successfully reduced the
12 occurrence of unexpected shutdowns. We recently extended the same support for
iPhone 7 and iPhone 7 Plus in iOS 11.2.
13
Of course, when a chemically aged battery is replaced with a new one, iPhone
14 performance returns to normal when operated in standard conditions.
15 Recent user feedback

16 Over the course of this fall, we began to receive feedback from some users who
were seeing slower performance in certain situations. Based on our experience, we
17 initially thought this was due to a combination of two factors: a normal, temporary
performance impact when upgrading the operating system as iPhone installs new
18 software and updates apps, and minor bugs in the initial release which have since
19 been fixed.

20 We now believe that another contributor to these user experiences is the continued
chemical aging of the batteries in older iPhone 6 and iPhone 6s devices, many of
21 which are still running on their original batteries.

22 See https://www.apple.com/iphone-battery-and-performance/ (last accessed Jan. 10, 2018).

23 131. Apple went on to offer $29 iPhone battery replacements for $29, a $50 discount

24 from the usual $79 price. Id. Unfortunately, Apple’s reduction in price for battery replacements

25 does nothing for the Plaintiffs and putative Class Members who already replaced their phones when

26 their processors were throttled.
27

28

21
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 23 of 67

1 CLASS ACTION ALLEGATIONS

2 132. Plaintiffs bring this lawsuit on behalf of themselves and all similarly situated individuals

3 and entities, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(2), 23(b)(3), and/or 23(c)(4).

4 Specifically, the classes consist of:

5 Nationwide Class

6 All purchasers in the United States who purchased an Apple iPhone on
which iOS updates 10.2.1 or 11.2 have been installed.
7

8 Alabama Subclass

9 All purchasers in the state of Alabama who purchased an Apple iPhone
on which iOS updates 10.2.1 or 11.2 have been installed.
10
Arizona Subclass
11

12 All purchasers in the state of Arizona who purchased an Apple iPhone
on which iOS updates 10.2.1 or 11.2 have been installed.
13
Arkansas Subclass
14

15 All purchasers in the state of Arkansas who purchased an Apple iPhone
on which iOS updates 10.2.1 or 11.2 have been installed.
16
California Subclass
17
All purchasers in the state of California who purchased an Apple iPhone
18 on which iOS updates 10.2.1 or 11.2 have been installed.
19
Connecticut Subclass
20
All purchasers in the state of Connecticut who purchased an Apple
21 iPhone on which iOS updates 10.2.1 or 11.2 have been installed.
22 Georgia Subclass
23
All purchasers in the state of Georgia who purchased an Apple iPhone
24 on which iOS updates 10.2.1 or 11.2 have been installed.

25 Hawaii Subclass
26
All purchasers in the state of Hawaii who purchased an Apple iPhone on
27 which iOS updates 10.2.1 or 11.2 have been installed.

28

22
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 24 of 67

1 Maryland Subclass

2 All purchasers in the state of Maryland who purchased an Apple iPhone
on which iOS updates 10.2.1 or 11.2 have been installed.
3

4 Massachusetts Subclass

5 All purchasers in the state of Massachusetts who purchased an Apple
iPhone on which iOS updates 10.2.1 or 11.2 have been installed.
6
Michigan Subclass
7

8 All purchasers in the state of Michigan who purchased an Apple iPhone
on which iOS updates 10.2.1 or 11.2 have been installed.
9
Ohio Subclass
10

11 All purchasers in the state of Ohio who purchased an Apple iPhone on
which iOS updates 10.2.1 or 11.2 have been installed.
12
Pennsylvania Subclass
13
All purchasers in the state of Pennsylvania who purchased an Apple
14 iPhone on which iOS updates 10.2.1 or 11.2 have been installed.
15
South Carolina Subclass
16
All purchasers in the state of South Carolina who purchased an Apple
17 iPhone on which iOS updates 10.2.1 or 11.2 have been installed.
18 Texas Subclass
19
All purchasers in the state of Texas who purchased an Apple iPhone on
20 which iOS updates 10.2.1 or 11.2 have been installed.

21 Virginia Subclass
22
All purchasers in the state of Texas who purchased an Apple iPhone on
23 which iOS updates 10.2.1 or 11.2 have been installed.

24 133. The Nationwide and State Subclasses are collectively referred to hereafter as the

25 “Class.” Excluded from the Class are: (a) any Judge presiding over this action and members of their

26 immediate families; (b) Defendant and their subsidiaries and affiliates; and (c) all persons who
27 properly execute and file a timely request for exclusion from the Class.

28

23
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 25 of 67

1 134. Numerosity: The Class is comprised of thousands of owners of iPhones, making

2 joinder of all Class members impractical. Moreover, the Class is composed of an easily

3 ascertainable, self-identifying set of individuals and entities that purchased iPhones. The precise

4 number of Class members can be ascertained through discovery, which includes Apple’s records.

5 The disposition of their claims through a class action will benefit both the parties and this Court.

6 135. Commonality: There are questions of law and fact common to the Class that will

7 materially advance the litigation, and these common questions predominate over any questions

8 affecting only individual Class members. Among the questions common to the Class are:

9 a. The origins and implementation of, and the justifications for, if any, Apple’s policies

10 and technology relating to the processor throttling defect in the iPhone;

11 b. Whether Apple actively concealed and/or failed to notify consumers of the processor

12 throttling defect in the iPhone;

13 c. Whether Defendant knew of these issues but failed to disclose the problems and/or

14 their consequences to their customers;

15 d. Whether a reasonable consumer would consider the processor throttling defect

16 and/or their consequences to be material;

17 e. Whether Defendant’s conduct violates state consumer protection laws as asserted

18 herein;

19 f. Whether Defendant’s provision of iOS updates that throttled processor performance

20 in iPhones is unfair, false, misleading, or deceptive acts in the conduct of any trade

21 or commerce;

22 g. Whether Defendant breached the implied warranty of merchantability, by

23 introducing iOS updates that throttled processor performance;

24 h. Whether Plaintiffs and the other Class members overpaid for their iPhones as a

25 result of the defect(s) alleged herein;

26 i. Whether Plaintiffs and Class Members would have purchased their iPhones, and
27 whether they would have paid a lower price for them, had they known that it

28 contained the processor throttling defect at the time of purchase;

24
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 26 of 67

1 j. Whether Plaintiffs and the Class are entitled to compensatory damages, including,

2 among other things: (i) compensation for all out-of-pocket monies expended by

3 members of the Class for replacement or repair of the iPhones; (ii) the failure of

4 consideration in connection with and/or difference in value arising out of the

5 variance between the iPhones as merchantable possessing non-defective processor

6 throttling and/or without predisposition to, and as actually manufactured and sold

7 possessing these issues; and, (iii) whether Plaintiffs and the Class are entitled to all

8 costs associated with repair and replacement of their iPhones; and

9 k. Whether Plaintiffs and the other Class members are entitled to equitable relief,

10 including, but not limited to, restitution or injunctive relief.

11 136. Typicality: Plaintiffs’ claims are typical of the claims of the members of the Class, as

12 all such claims arise out of Defendant’s conduct in designing, manufacturing, marketing, advertising,

13 warranting, and selling the iPhones. All of Plaintiffs’ claims are typical of the claims of the Class

14 since Plaintiffs and all Class members were injured in the same manner by Defendant’s uniform

15 course of conduct described herein. Plaintiffs and all Class members have the same claims against

16 Defendant relating to the conduct alleged herein, and the same events giving rise to Plaintiffs’ claims

17 for relief are identical to those giving rise to the claims of all Class members. Plaintiffs and all Class

18 members sustained monetary and economic injuries including, but not limited to, ascertainable

19 losses arising out of Defendant’s wrongful conduct as described herein. Plaintiffs are advancing the

20 same claims and legal theories on behalf of themselves and all absent Class members.

21 137. Adequate Representation: Plaintiffs will fairly and adequately protect the interests

22 of the Class members and have no interests antagonistic to those of the Class. Plaintiffs have

23 retained counsel experienced in the prosecution of complex class actions including, but not limited

24 to, consumer class actions involving, inter alia, breach of warranties, product liability, product

25 design defects, and state consumer fraud statutes.

26 138. Predominance: This class action is appropriate for certification because questions of
27 law and fact common to the members of the Class predominate over questions affecting only

28 individual members.

25
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 27 of 67

1 139. Superiority: A class action is superior to other available methods for the fair and

2 efficient adjudication of this controversy, since individual joinder of all members of the Class is

3 impracticable. Should individual Class Members be required to bring separate actions, this Court

4 would be confronted with a multiplicity of lawsuits burdening the court system while also creating

5 the risk of inconsistent rulings and contradictory judgments. In contrast to proceeding on a case-by-

6 case basis, in which inconsistent results will magnify the delay and expense to all parties and the

7 court system, this class action presents far fewer management difficulties while providing unitary

8 adjudication, economies of scale and comprehensive supervision by a single court.

9 CAUSES OF ACTION

10 COUNT I
BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
11 (On Behalf of the Nationwide Class)

12 140. Plaintiffs repeat and reallege the allegations above as if fully set forth herein.

13 141. Plaintiffs bring this claim on behalf of the Nationwide Class.

14 142. Apple is a “merchant” as defined under the Uniform Commercial Code (“UCC”).

15 143. The iPhones are “goods” as defined under the UCC.

16 144. Apple impliedly warranted that the iPhones were of a merchantable quality.

17 145. Apple breached the implied warranty of merchantability because the iPhones were

18 not of a merchantable quality due to the processor throttling defect and other conduct alleged

19 above.

20 146. Plaintiffs and Class members’ interactions with Apple suffice to create privity of

21 contract between Plaintiffs and Class members, on the one hand, and Defendant, on the other hand;

22 however, privity of contract need not be established nor is it required because Plaintiffs and Class

23 members are intended third party beneficiaries of contracts (including implied warranties) between

24 Apple and the retailers who sell the iPhones. Defendant’s warranties were designed for the benefit

25 of consumers who purchase(d) iPhones.

26 147. As a direct and proximate result of the breach of said warranties, Plaintiffs and Class
27 members were injured and are entitled to damages.

28

26
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 28 of 67

1 148. Defendant’s attempts to disclaim or limit the implied warranty of merchantability

2 vis-à-vis consumers are unconscionable and unenforceable. Specifically, Defendant’s warranty

3 limitations are unenforceable because Defendant knowingly sold a defective product without

4 informing consumers about the processor throttling defect.

5 149. The time limits contained in Defendant’s warranty period were also unconscionable

6 and inadequate to protect Plaintiffs and members of the Class. Among other things, Plaintiffs and

7 members of the Class had no meaningful choice in determining these time limitations, terms which

8 unreasonably favor Defendant. A gross disparity in bargaining power existed between Defendant

9 and Class members, as only Defendant knew or should have known that the iPhones were defective

10 at the time of sale and that the Phones would fail well before their useful lives.

11 150. Plaintiffs and Class members have complied with all obligations under the warranty

12 or otherwise have been excused from performance of said obligations as a result of Defendant’s

13 conduct described herein.

14 151. Defendant was provided notice of these issues by complaints lodged by consumers

15 before or within a reasonable amount of time after the allegations of the processor throttling defect

16 became public.

17 COUNT II
VIOLATION OF THE MAGNUSSON-MOSS WARRANTY ACT,
18 15 U.S.C. §§ 2301, et seq. (“MMWA”)
(On Behalf of the Nationwide Class)
19

20 152. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

21 153. Plaintiffs and Class members are “consumers” within the meaning of the MMWA.

22 15 U.S.C. § 2301(3).

23 154. The iPhones are “consumer products” within the meaning of the MMWA. 15 U.S.C.

24 § 2301(1).

25 155. Apple is a “supplier” and “warrantor” within the meaning of the MMWA. 15 U.S.C.

26 § 2301(4)-(5).
27 156. This claim is being brought under Section 2310(d)(a) of the MMWA as a state cause

28 of action over which this Court has supplemental jurisdiction which provides a cause of action for

27
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 29 of 67

1 consumers who are harmed by the failure of a warrantor to comply with a written or implied

2 warranty.

3 157. The iPhones’ implied warranties are accounted for under Section 2301(7) of the

4 MMWA, and are warranties which Apple cannot disclaim, when they fail to provide merchantable

5 goods.

6 158. As set forth herein, Apple breached their warranties with Plaintiffs and Class

7 members.

8 159. Additionally, 15 U.S.C. § 2304(d) provides in pertinent part:

9 [T]he warrantor may not assess the consumer for any costs the warrantor or his
representatives incur in connection with the required remedy of a warranted
10 consumer product. . . . [I]f any incidental expenses are incurred because the remedy
is not made within a reasonable time or because the warrantor imposed an
11 unreasonable duty upon the consumer as a condition of securing remedy, then the
consumer shall be entitled to recover reasonable incidental expenses which are so
12 incurred in any action against the warrantor. Id.

13 160. The iPhones share a common defect in that iOS updates have caused processor
14 throttling which materially slows down the phones, rendering them sluggish and unusable.

15 161. Defendant also provided iOS updates that masked the unexpected shutdown defect’s
16 manifestation while introducing the throttling defect without disclosing same to iPhone owners.

17 162. Despite demands by Plaintiffs and the Class for Apple to pay the expenses
18 associated with diagnosing and repairing the iPhones which were borne by consumers, Apple has

19 refused to do so.

20 163. As a direct and proximate result of Apple’s breach of implied and express warranties
21 pursuant to 15 U.S.C. § 2310(d)(1), Plaintiffs and Class members have suffered damages in an

22 amount to be proven at trial.

23 164. At least one of the Plaintiffs and the other Class members would suffer economic
24 hardship if they returned their Phones but did not receive the return of all payments made by them.

25 Because Apple is refusing to acknowledge any revocation of acceptance and immediately return

26 any payments made, Plaintiffs and the other Class members have not reaccepted their Phones by
27 retaining them.

28

28
CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 30 of 67

1 165. The amount in controversy for each Plaintiffs’ and Class members’ individual

2 claims meets or exceeds the sum of $25. The total amount in controversy of this action in sum

3 exceeds $50,000, exclusive of interest and costs, computed on the basis of all claims to be

4 determined in this lawsuit.

5 166. Plaintiffs and Class members are entitled to recover damages as a result of

6 Defendant’ breach of warranties.

7 167. Plaintiffs and Class members are also entitled to seek costs and expenses, including

8 attorneys’ fees, under the MMWA. 15 U.S.C. § 2310(d)(2).

9 COUNT III
VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT
10 18 U.S.C. § 1030, et seq. (“CFAA”)
(On Behalf of the Nationwide Class)
11

12 168. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

13 169. The Computer Fraud and Abuse Act (“CFAA”) establishes a private cause of action

14 against a person who “knowingly accessed a computer without authorization or exceeding

15 authorized access,” and whose prohibited access results in damage or loss in excess of $5,000. 18

16 U.S.C. § 1030(g) (referencing § 1030(c)(4)(A)(i)(I)); see also § 1030(a).

17 170. The CFAA establishes liability against whomever:


18 a. “knowingly causes the transmission of a program, information, code, or

19 command, and as a result of such conduct, intentionally causes damage without authorization, to a

20 protected computer” (§ 1030(a)(5)(A));

21 b. “intentionally accesses a protected computer without authorization, and as a

22 result of such conduct, recklessly causes damage” (§ 1030(a)(5)(B)); or

23 c. “intentionally accesses a protected computer without authorization, and as a

24 result of such conduct, causes damage and loss” (§ 1030(a)(5)(C)).

25 171. The term “computer” means “an electronic, magnetic, optical, electrochemical, or

26 other high-speed data processing device performing logical, arithmetic, or storage functions, and
27 includes any data storage facility or communications facility directly related to or operating in

28 conjunction with such device[.]” 18 U.S.C. § 1030(e)(1).

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1 172. A “protected computer” is defined, in relevant part, as a computer “which is used in

2 or affecting interstate or foreign commerce or communication.” 18 U.S.C. § 1030(e)(2)(B).

3 173. “[E]xceeds authorized access” means “access[ing] a computer with authorization

4 and . . . us[ing] such access to obtain or alter information in the computer that the accesser is not

5 entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6).

6 174. “Loss” means “any reasonable cost to any victim, including the cost of responding

7 to an offense, conducting a damage assessment, and restoring the data, program, system, or

8 information to its condition prior to the offense, and any revenue lost, cost incurred, or other

9 consequential damages incurred because of interruption of service.” 18 U.S.C. § 1030(e)(11).

10 175. Damage means “any impairment to the integrity or availability of data, a program, a

11 system, or information.” 18 U.S.C. § 1030(e)(8).

12 176. iPhones are “computers” under the CFAA by virtue of being electronic, high speed

13 data processing devices which perform logical, arithmetic, and storage functions.

14 177. iPhones are “protected computers” under the CFAA because they are used in and

15 affect interstate and foreign commerce and communication, including through contact and

16 communication with remote servers and through personal and business usages that affect interstate

17 and foreign commerce.

18 178. Apple knowingly and intentionally exceeded its authorized access to Plaintiffs’ and

19 Class members’ iPhones. Plaintiffs and Class members did not consent to Apple’s performance-

20 throttling software.

21 179. By exceeding its authorized access, Apple obtained and altered iPhones’ information

22 and data. Apple initiated iOS updates that, by design, prevented the iPhones from performing at

23 their maximum capacity and created the impression that the iPhone required replacement due to

24 obsolescence. These communications resulted from a single act in the form of Apple’s distribution

25 of its iOS update.

26 180. By implementing its iOS update, Apple knowingly caused the transmission of “a
27 program, information, code, or command ... to a protected computer” and, as a result of that

28 conduct, intentionally caused damage in violation of 18 U.S.C. § 1030(a)(5)(A).

30
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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 32 of 67

1 181. By implementing its iOS update, HP intentionally accessed iPhones without

2 authorization, and as a result of that conduct, caused or recklessly caused damage or loss to those

3 protected computers, in violation of 18 U.S.C. §§ 1030(a)(5)(B) and (a)(5)(C).

4 182. As a direct and proximate result of Apple’s CFAA violations, Apple caused

5 damages and loss to Plaintiffs an Class members during a one-year period that exceed $5,000 in

6 value.

7 183. Apple’s iOS update caused damage and loss to Plaintiffs and Class members,

8 including by disabling iPhones, eliminating or impairing Plaintiffs’ and Class members’ use of

9 those iPhones, causing Plaintiffs and Class members to expend money, time, and labor to

10 investigate and try to repair their disabled iPhones, and decreasing the value of the iPhones.

11 184. Based on Apple’s violation of the CFAA, Plaintiffs and Class members seek

12 recovery of economic damages and all other relief provided for under 18 U.S.C. § 1030(g).

13 COUNT IV
TRESPASS TO CHATTELS
14 (On behalf of the Nationwide Class)

15 185. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

16 186. Plaintiffs bring this claim individually and on behalf of the Nationwide Class.

17 187. Apple intentionally devised and executed an iOS update that materially degraded the

18 performance of Plaintiffs’ and Class members’ iPhones, and which induced Plaintiffs and Class

19 members to purchase replacement phones sooner than they would have but for Apple’s

20 performance-throttling software. Plaintiffs did not consent to Apple’s performance-throttling

21 aspects of the iOS update because Apple never disclosed those aspects to Plaintiffs or Class

22 members.

23 188. Apple knew that the iOS update was substantially certain to degrade the

24 performance of iPhones belonging to Plaintiffs and members of the Class.

25 189. Apple’s interference with the performance of Plaintiffs’ and Class members’ phones

26 was intentional and wrongful.
27 190. Apple’s interference with Plaintiffs’ and Class members’ reasonable expectation that

28 they could use their iPhones without having the performance intentionally degraded by Apple

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1 through iOS updates was intentional and wrongful.

2 191. Plaintiffs and Class members sustained harm as a direct and proximate result of

3 Apple’s tortious interference with their iPhones. Plaintiffs and Class members were deprived of

4 iPhones that worked as intended and the ability to use the iPhones without performance-degrading

5 throttling software. Plaintiffs and Class members accordingly seek damages in an amount to be

6 proven at trial.

7 COUNT V
UNJUST ENRICHMENT
8 (IN THE ALTERNATIVE)
(On Behalf of the Nationwide Class and/or the Individual Subclasses)
9

10 192. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

11 193. Plaintiffs bring this claim individually and on behalf of the Nationwide Class and/or

12 individual Subclasses.

13 194. Plaintiffs and Class Members have conferred a benefit on Defendant by purchasing

14 their iPhones. Defendant has been unjustly enriched in retaining the revenues derived from

15 Plaintiffs’ and Class Members’ iPhone purchases and out-of-pocket repairs. Retention of such

16 revenues under these circumstances is unjust and inequitable because of the fatal chip defect and

17 iOS updates which has caused injury to Plaintiffs and the Class by materially reducing the

18 functionality of their phones. Defendant’s actions caused further injuries to Plaintiffs and the Class

19 because they would not have purchased their iPhones or would have paid less for them if the true

20 characteristics of the phones had been known at the time of purchase.

21 195. In addition, or alternatively, Apple has benefited from increased sales of new

22 iPhones as a direct result of Plaintiffs and Class Members purchasing new iPhones when their old

23 iPhones became throttled and sluggish.

24 196. Because Defendant’s retention of the non-gratuitous benefit conferred on it by

25 Plaintiffs and the Class Members is unjust and inequitable, Defendant must pay restitution to

26 Plaintiffs and the Class Members for their unjust enrichment, as ordered by the Court.
27

28

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1 COUNT VI
VIOLATION OF THE UNFAIR PRONG OF VARIOUS STATES’ UNFAIR AND
2 DECEPTIVE TRADE PRACTICES STATUTES
(Brought by Plaintiffs Ashley Antonucci, Kristin Edgerly, Melissa Koncinsky, Sandra
3 Merola, Charles Saadiq, Ruth Beauchan, Suzanne Carter, Kelly Jankowski, Tiffany
Williams, Noelle Boehme, Jenifer Kachik, Ryan Ward, Crystal Saldana, Patty Burriss, and
4 Charlene Lowery on behalf of their respective Subclasses)

5 197. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

6 198. Plaintiffs Ashley Antonucci, Kristin Edgerly, Melissa Koncinsky, Sandra Merola,

7 Charles Saadiq, Ruth Beauchan, Suzanne Carter, Kelly Jankowski, Tiffany Williams, Noelle

8 Boehme, Jenifer Kachik, Ryan Ward, Crystal Saldana, Patty Burriss, and Charlene Lowery bring

9 this claim individually and on behalf of their State Subclasses.

10 199. Plaintiffs Ashley Antonucci, Kristin Edgerly, Melissa Koncinsky, Sandra Merola,

11 Charles Saadiq, Ruth Beauchan, Suzanne Carter, Kelly Jankowski, Tiffany Williams, Noelle

12 Boehme, Jenifer Kachik, Ryan Ward, Crystal Saldana, Patty Burriss, and Charlene Lowery above

13 and class members who purchased iPhones are “consumers” under their states’ unfair and deceptive

14 practices statutes.3

15 200. Defendant’s practices, acts, policies and course of conduct violated these states’

16 unfair and deceptive practices statutes in that:

17 a. Defendant engaged in unfair acts and practices in or affecting commerce,

18 through their advertisements and packaging of iPhones, by representing to Plaintiffs and members

19 of their Subclasses, among other things, that the products were premium and durable smartphones

20 with high performance. Such pattern of conduct was uniform in nature with respect to the

21 marketing and sale of the product.

22

23

24
3
See Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. § 42-110(b), et seq.; Hawaii
25 Consumer Protection Act, Haw. Rev. Stat. Ann. § 480-2(a), et seq; Michigan Consumer Protection
Act (“MCPA”), Michigan Comp. Laws Ann. § 445.903 et seq.; Ohio Consumer Sales Practices
26 Act, Ohio Rev. Code. § 1345.01, et seq.; Pennsylvania Unfair Trade Practices and Consumer
27 Protection Law, 73 P.S. §§ 201-2(4)(v)(vii) and (xxi), and 201-3, et seq.; South Carolina Consumer
Protection Code, S.C. Code Ann. §§ 37-1-101, et seq.
28

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1 b. Defendant also knowingly concealed, suppressed and consciously omitted

2 material facts from Plaintiffs and other members of their Subclasses – such as the processor

3 throttling defect – knowing that consumers would rely on the advertisements and Defendant’s

4 uniform representations concerning the iPhone’s high performance and functionality in purchasing

5 their iPhones.

6 c. Defendant also provided iOS updates that masked the unexpected shutdown

7 defect’s manifestation while introducing the throttling defect without disclosing same to iPhone

8 owners.

9 201. Defendant’s acts and omissions are unfair in that they (1) offend public policy; (2)

10 are immoral, unethical, oppressive, or unscrupulous; and (3) cause substantial injury to consumers.

11 202. Until the present, Defendant knowingly accepted the benefits of their unfair conduct

12 in the form of profits from the increased sale of the iPhone.

13 203. As a proximate result of the above-described unfair acts, Plaintiffs and members of

14 their Subclasses: (a) purchased and used iPhones when they would not otherwise have done so; (b)

15 suffered economic losses consisting of the iPhone cost of purchase or, alternatively, the diminished

16 value of the iPhones with the processor throttling defect; (c) suffered and/or will suffer additional

17 economic losses in purchasing another smartphone; and (d) suffered and will suffer additional

18 economic losses incidental to the processor throttling defect.

19 204. As a direct and proximate result of these unfair practices, Plaintiffs and the

20 members of their state subclasses have been damaged and are entitled to recover actual damages to

21 the extent permitted by law, including class action rules, in an amount to be proven at trial.

22 205. Plaintiffs and Subclass Members also seek appropriate equitable relief, including an

23 order requiring Apple to adequately disclose and remediate the defect plaguing its iPhones, and an

24 order enjoining Apple from incorporating the defect into its phones in the future. Plaintiffs and the

25 Subclasses also seek attorneys’ fees and any other just and proper relief available under their

26 states’ unfair and deceptive trade practices statutes.
27

28

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 36 of 67

1 COUNT VII
VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT
2 BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
(CAL. CIV. CODE §§ 1791.1 & 1792)
3 (On Behalf of the California Subclass)

4 206. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

5 207. Plaintiff Halee Dion brings this Count on behalf of the California Subclass.

6 208. Plaintiff and the other Class members who purchased iPhones in California are

7 “buyers” within the meaning of Cal. Civ. Code § 1791(b).

8 209. The iPhones are “consumer goods” within the meaning of Cal. Civ. Code

9 § 1791(a).

10 210. Apple is a “manufacturer” of the iPhones within the meaning of Cal. Civ. Code

11 § 1791(j).

12 211. Defendant impliedly warranted to Plaintiff and members of the California Subclass

13 that their iPhones were “merchantable” within the meaning of Cal. Civ. Code §§ 1791.1(a) &

14 1792; however, the iPhones are not of the quality that a buyer would reasonably expect.

15 212. Cal. Civ. Code § 1791.1(a) states: “Implied warranty of merchantability” or

16 “implied warranty that goods are merchantable” means that the consumer goods meet each of the

17 following: (1) Pass without objection in the trade under the contract description; (2) are fit for the

18 ordinary purposes for which such goods are used; (3) are adequately contained, packaged, and

19 labeled; and (4) conform to the promises or affirmations of fact made on the container or label.

20 213. The iPhones would not pass without objection in the smartphone trade because of

21 their processor throttling defect and predisposition to failure, and/or are not fit for the ordinary

22 purposes for which such goods are used.

23 214. Defendant breached the implied warranty of merchantability by manufacturing and

24 selling iPhones containing the processor throttling defect and that are doomed to fail and/or by

25 providing iOS updates that fomented the defect’s manifestation.

26 215. Furthermore, the defect has caused Plaintiff and members of the California
27 Subclass to not receive the benefit of their bargain.

28

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 37 of 67

1 216. As a direct and proximate result of Defendant’ breaches of the implied warranty of

2 merchantability, Plaintiff and members of the California Subclass received goods whose defective

3 condition substantially impairs their value to consumers. Plaintiff and members of the California

4 Subclass have been damaged as a result of the diminished value of Defendant’s iPhone, the

5 iPhone’s malfunctioning, and the nonuse of their iPhones.

6 217. Plaintiffs and members of the California Subclass have had sufficient direct

7 dealings with either Defendant or their agents (e.g., dealerships and technical support) to establish

8 privity of contract between Defendant on one hand, and Plaintiff and each of the members of the

9 California Subclass on the other hand. In any event, privity is not required here because Plaintiff

10 and each of the members of the California Subclass are intended third-party beneficiaries of

11 contracts (including implied warranties) between Defendant and their retailers. The retailers were

12 never intended to be the ultimate consumers of the iPhones and have no rights under the warranty

13 agreements provided with the iPhones; rather, the warranty agreements were designed for and

14 intended to benefit the consumers only.

15 218. Pursuant to Cal. Civ. Code §§ 1791.1(d) & 1794, Plaintiff and the members of the

16 California Subclass are entitled to damages and other legal and equitable relief, including, at their

17 election, the purchase price of their iPhones, or the overpayment or diminution in value of their

18 iPhones.

19 219. Pursuant to Cal. Civ. Code § 1794, Plaintiff and the other Class members are entitled

20 to costs and attorneys’ fees.

21 COUNT VIII
BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
22 (CAL. COM. CODE § 2314)
(On Behalf of the California Subclass)
23

24 220. Plaintiffs repeat the above allegations as if fully set forth herein

25 221. Plaintiff Halee Dion brings this Count on behalf of the California Subclass.

26 222. Defendant is and was at all relevant times a merchant with respect to smartphones
27 under Cal. Com. Code § 2014.

28

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 38 of 67

1 223. A warranty that the iPhones were in merchantable condition is implied by law in the

2 instant transactions, pursuant to Cal. Com. Code § 2314.

3 224. These iPhones, when sold and at all times thereafter, were not in merchantable

4 condition and are not fit for the ordinary purpose for which phones are used.

5 225. The iOS update provided by Apple masked the unexpected shutdown defect’s

6 manifestation while introducing the throttling defect without disclosing same to iPhone owners.

7 226. The iPhones were thus not in merchantable condition and are not fit for the ordinary

8 purpose for which phones are used.

9 227. Defendant was provided notice of these issues by complaints lodged by consumers

10 through blogs, warranty claims and elsewhere as detailed herein.

11 228. As a direct and proximate result of Defendant’s breach of the warranties of

12 merchantability, Plaintiff and the members of the California Subclass have been damaged in an

13 amount to be proven at trial.

14 COUNT IX
VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION LAW
15 (CAL. BUS. & PROF. CODE § 17200, et seq.) (“UCL”)
(On Behalf of the California Subclass)
16

17 229. Plaintiffs repeat and allege the above allegations as if fully set forth herein

18 230. Plaintiff Halee Dion brings this Count on behalf of the California Subclass.

19 231. The UCL proscribes acts of unfair competition, including “any unlawful, unfair or

20 fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising.”

21 232. Defendant’s conduct, as described herein, was and is in violation of the UCL.

22 Defendant’s conduct violates the UCL in at least the following ways: a. Knowingly and intentionally

23 concealing from Plaintiff and the members of the California Subclass the existence of the processor

24 throttling defect in the iPhones; b. Marketing the iPhones as being functional and not possessing a

25 defect that would render them useless; and c. Violating other California laws, including California

26 laws governing false advertising and consumer protection.
27 233. Defendant’s misrepresentations and omissions alleged herein caused Plaintiff and the

28 members of the California Subclass to purchase their iPhones. Absent these misrepresentations and

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 39 of 67

1 omissions, Plaintiff and the members of the California Subclass would not have purchased their

2 iPhones at the prices they paid (or purchased them at all).

3 234. Defendant had a duty to disclose these issues because it had exclusive knowledge of

4 the defect prior to making sales of iPhones and/or providing the iOS update detailed herein, and

5 because Defendant made partial representations about the quality of the iPhones and/or the iOS

6 update, but failed to fully disclose the problems as well.

7 235. As a result of Defendant’s misrepresentations and omissions, Plaintiff and the

8 members of the California Subclass have suffered injury in fact, including lost money or property.

9 236. Plaintiff seeks to enjoin further unlawful, unfair, and/or fraudulent acts or practices by

10 Defendant under Cal. Bus. & Prof. Code § 17200.

11 237. Plaintiff requests that this Court enter such orders or judgments as may be necessary

12 to enjoin Defendant from continuing their unfair, unlawful, and/or deceptive practices, and to

13 restore to Plaintiffs and the members of the California Subclass any money they acquired by unfair

14 competition, including restitution and/or restitutionary disgorgement, as provided for under CAL.

15 BUS. & PROF. CODE §§ 17203 & 3345; and for such other relief set forth below.

16 COUNT X
VIOLATION OF THE CALIFORNIA COMPUTER CRIME LAW,
17 Cal. Penal Code § 502
(On Behalf of the California Subclass)
18

19 238. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

20 239. This Count is brought on behalf of Plaintiff Halee Dion and the California Subclass.

21 240. The California Computer Crime Law prohibits knowing and unauthorized access to

22 computers, computer networks, and computer systems.

23 241. iPhones are “computers” and part of a “computer network” or “computer system”

24 under this statute. While the statute does not define “computer,” it defines “computer network” as

25 “any system that provides communications between one or more computer systems and

26 input/output devices, including, but not limited to, display terminals, remote systems, mobile
27 devices, and printers connected by telecommunication facilities.” Cal. Penal Code § 502(b)(2).

28 “Computer system” is defined, in relevant part, as a “device or collection of devices, including

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 40 of 67

1 support devices ... one or more of which contain computer programs, electronic instructions, input

2 data, and output data, that performs functions, including, but not limited to, logic, arithmetic, data

3 storage and retrieval, communication, and control.” Cal. Penal Code § 502(b)(5).

4 242. Apple’s iOS update is a “computer program or software” and “computer

5 contaminant” under Cal. Penal Code §§ 502(b)(3) and (12).

6 243. Apple had “access” to Plaintiff’s and Class members’ computers, computer systems,

7 and computer networks under Cal. Penal Code § 502(b)(1) when it implemented its remote iOS

8 update.

9 244. Apple implemented this iOS update knowingly and without permission from

10 Plaintiff and Class members.

11 245. Through its iOS update, Apple obtained and interfered with “data” from iPhones

12 under Cal. Penal Code § 502(b)(8).

13 246. Through Apple’s knowing implementation of its iPhone throttling features of the

14 iOS update without Plaintiff’s and Class members’ permission, Apple violated the California

15 Computer Crime Law in at least the following respects:

16 a. In violation of Cal. Penal Code §§ 502(c)(1)-(2), Apple altered and made use

17 of iPhone data to devise and execute a scheme or artifice to defraud, deceive, or extort, and to

18 wrongfully control or obtain money or property. Among other components of this scheme, Apple’s

19 iOS update materially slowed the iPhones’ performance, creating the impression that the iPhones

20 were damaged, obsolete, or otherwise required replacement. Apple deployed this performance-

21 throttling features to induce Plaintiff and Class members to purchase new iPhones.

22 b. In violation of Cal. Penal Code § 502(c)(3)-(4), Apple used or caused to be

23 used computer services, and added, altered, and damaged iPhones’ data, programs, or software.

24 c. By implementing its iOS update and throttling iPhones, Apple caused the

25 disruption and denial of computer services to authorized users, such as Plaintiffs and Class

26 members, in violation of Cal. Penal Code § 502(c)(5).
27 247. As an actual and proximate result of Apple’s conduct in violation of the California

28 Computer Crime Law, Plaintiffs and Class members have been damaged in an amount to be

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 41 of 67

1 determined at trial. Under Cal. Penal Code §§ 502(e)(1) and (2), Plaintiff and Class members are

2 entitled to compensatory damages, equitable relief, and reasonable attorneys’ fees.

3 COUNT XI
VIOLATION OF ALABAMA’S DECEPTIVE TRADE PRACTICES ACT (“ADTPA”)
4 Ala. Code. § 8-19-1, et seq.
(On Behalf of the Alabama Class)
5

6 248. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

7 249. This Count is brought on behalf of Plaintiff Khendle Williams, and the Alabama

8 Class.

9 250. Plaintiff is a “consumer” within the meaning of Ala. Code. § 8-19-3(2).

10 251. Defendant is a “person” within the meaning of Ala. Code. § 8-19-3(5).

11 252. The iPhones are “goods” within the meaning of Ala. Code. § 8-19-3(3).

12 253. Defendant was engaged in “trade or commerce” within the meaning of Ala. Code.

13 § 8-19-3(8).

14 254. Defendant engaged in deceptive acts and practices in or affecting commerce,

15 through their advertisements and packaging of iPhones, by representing to Plaintiff and members of

16 the Alabama Subclass, among other things, that the products were premium and durable

17 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

18 the marketing and sale of the product.

19 255. Defendant also knowingly concealed, suppressed and consciously omitted material

20 facts from Plaintiff and other members of the members of the Alabama Subclass – such as the

21 processor throttling defect and/or that iOS update detailed herein would foment manifestation of

22 the defect – knowing that consumers would rely on the advertisements and Defendant’s uniform

23 representations concerning the iPhone’s high performance and functionality in purchasing and/or

24 updating their iPhones.

25 256. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

26 create the likelihood of deception.
27 257. Until the present, Defendant knowingly accepted the benefits of their deception and

28 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

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1 services.

2 258. As a proximate result of the above-described Consumer Protection Act violations,

3 Plaintiffs and members of the Alabama Subclass: (a) purchased and used iPhones when they would

4 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

5 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)

6 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

7 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

8 processor throttling defect.

9 259. As a direct and proximate result of these deceptive commercial practices, Plaintiffs

10 and the members of the Alabama Subclass have been damaged, and are entitled to recover the

11 greater of: (1) actual damages to the extent permitted by law, including class action rules, in an

12 amount to be proven at trial and (2) statutory damages in the amount of $100 for each Plaintiff and

13 each Alabama Class Member.

14 260. Plaintiff and Alabama Subclass Members also seek appropriate equitable relief,

15 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

16 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

17 Plaintiff and the Class also seek attorneys’ fees and any other just and proper relief available under

18 the ADTPA.

19 261. Plaintiff presently does not claim the relief sought above pursuant to Ala. Code § 8-

20 19-10(e), until Plaintiffs’ counsel, on behalf of Plaintiff Khendle Williams, and the Alabama Class,

21 serve Defendant with notice of the alleged violations of the CCPA relating to the iPhones

22 purchased by Plaintiff and Class Members, and demanding that Defendant corrects or agrees to

23 correct the actions described therein. If Defendant fails to do so, Plaintiff seeks all damages and

24 relief to which Plaintiff and the Class are entitled.

25 COUNT XII
VIOLATION OF ARIZONA’S CONSUMER FRAUD ACT (“ACFA”)
26 A.R.S. § 44-1522, et seq.
(On Behalf of the Arizona Subclass)
27

28 262. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

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1 263. This Count is brought on behalf of Plaintiffs Trent Young and Gene Schlaefer, and

2 the Arizona Subclass.

3 264. Defendant engaged in deceptive acts and practices in or affecting commerce,

4 through their advertisements and packaging of iPhones, by representing to Plaintiffs and members

5 of the Arizona Subclass, among other things, that the products were premium and durable

6 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

7 the marketing and sale of the product.

8 265. Defendant also knowingly concealed, suppressed and consciously omitted material

9 facts from Plaintiffs and other members of the members of the Arizona Subclass – such as the

10 processor throttling defect and/or that iOS update detailed herein would foment manifestation of

11 the defect – knowing that consumers would rely on the advertisements and Defendant’s uniform

12 representations concerning the iPhone’s high performance and functionality in purchasing and/or

13 updating their iPhones.

14 266. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

15 create the likelihood of deception.

16 267. Until the present, Defendant knowingly accepted the benefits of their deception and

17 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

18 services.

19 268. As a proximate result of the above-described Consumer Protection Act violations,

20 Plaintiffs and members of the Arizona Subclass: (a) purchased and used iPhones when they would

21 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

22 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)

23 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

24 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

25 processor throttling defect.

26 269. As a direct and proximate result of these deceptive commercial practices, Plaintiffs
27 and the members of the Arizona Subclass have been damaged, and are entitled to recover actual

28 damages to the extent permitted by law, including class action rules, in an amount to be proven at

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1 trial.

2 270. Plaintiffs and Arizona Subclass Members also seek appropriate equitable relief,

3 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

4 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

5 Plaintiffs and the Class also seek attorneys’ fees and any other just and proper relief available under

6 the ADTPA.

7 COUNT XIII
VIOLATION OF ARKANSAS’ DECEPTIVE TRADE PRACTICES ACT (“ADTPA”)
8 Ark. Code Ann. § 4-88-107(a)(1)(10) and 4-88-108(1)(2), et. seq.
(On Behalf of the Arkansas Subclass)
9

10 271. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

11 272. This Count is brought on behalf of Plaintiff Cynthia Stacy, and the Arkansas

12 Subclass.

13 273. Defendant engaged in deceptive acts and practices in or affecting commerce,

14 through their advertisements and packaging of iPhones, by representing to Plaintiff and members of

15 the Arkansas Subclass, among other things, that the products were premium and durable

16 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

17 the marketing and sale of the product.

18 274. Defendant also knowingly concealed, suppressed and consciously omitted material

19 facts from Plaintiff and other members of the members of the Arkansas Subclass – such as the

20 processor throttling defect and/or that iOS update detailed herein would foment manifestation of

21 the defect – knowing that consumers would rely on the advertisements and Defendant’s uniform

22 representations concerning the iPhone’s high performance and functionality in purchasing and/or

23 updating their iPhones.

24 275. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

25 create the likelihood of deception.

26 276. Until the present, Defendant knowingly accepted the benefits of their deception and
27 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

28 services.

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1 277. As a proximate result of the above-described Consumer Protection Act violations,

2 Plaintiff and members of the Arkansas Subclass: (a) purchased and used iPhones when they would

3 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

4 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)

5 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

6 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

7 processor throttling defect.

8 278. As a direct and proximate result of these deceptive commercial practices, Plaintiff

9 and the members of the Arkansas Subclass have been damaged, and are entitled to recover actual

10 damages to the extent permitted by law, including class action rules, in an amount to be proven at

11 trial.

12 279. Plaintiff and Arkansas Subclass Members also seek appropriate equitable relief,

13 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

14 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

15 Plaintiff and the Class also seek attorneys’ fees and any other just and proper relief available under

16 the ADTPA.

17 COUNT XIV
VIOLATION OF HAWAII’S DECEPTIVE TRADE PRACTICES ACT (“HDTPA”)
18 Haw. Rev. Stat. Ann. § 481 A-3(a)(5), (7) and (12), et seq.
(On Behalf of the Hawaii Subclass)
19

20 280. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

21 281. This Count is brought on behalf of Plaintiff Ruth Beauchan, and the Hawaii

22 Subclass.

23 282. Defendant engaged in deceptive acts and practices in or affecting commerce,

24 through their advertisements and packaging of iPhones, by representing to Plaintiff and members of

25 the Hawaii Subclass, among other things, that the products were premium and durable smartphones

26 with high performance. Such pattern of conduct was uniform in nature with respect to the
27 marketing and sale of the product.

28

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1 283. Defendant also knowingly concealed, suppressed and consciously omitted material

2 facts from Plaintiff and other members of the members of the Hawaii Subclass – such as the

3 processor throttling defect and/or that iOS update detailed herein would foment manifestation of

4 the defect – knowing that consumers would rely on the advertisements and Defendant’s uniform

5 representations concerning the iPhone’s high performance and functionality in purchasing and/or

6 updating their iPhones.

7 284. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

8 create the likelihood of deception.

9 285. Until the present, Defendant knowingly accepted the benefits of their deception and

10 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

11 services.

12 286. As a proximate result of the above-described Consumer Protection Act violations,

13 Plaintiff and members of the Hawaii Subclass: (a) purchased and used iPhones when they would

14 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

15 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)

16 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

17 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

18 processor throttling defect.

19 287. As a direct and proximate result of these deceptive commercial practices, Plaintiffs

20 and the members of the Hawaii Subclass have been damaged, and are entitled to recover actual

21 damages to the extent permitted by law, including class action rules, in an amount to be proven at

22 trial.

23 288. Plaintiff and Hawaii Subclass Members also seek appropriate equitable relief,

24 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

25 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

26 Plaintiff and the Class also seek attorneys’ fees and any other just and proper relief available under
27 the HDTPA.

28

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1 COUNT XV
VIOLATION OF HAWAII’S CONSUMER PROTECTION ACT (“HCPA”)
2 Haw. Rev. Stat. Ann. § 480-2(a), et. seq.
(On Behalf of the Hawaii Subclass)
3

4 289. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

5 290. This Count is brought on behalf of Plaintiff Ruth Beauchan, and the Hawaii

6 Subclass.

7 291. Defendant engaged in consumer protection violations in or affecting commerce,

8 through their advertisements and packaging of iPhones, by representing to Plaintiff and members of

9 the Hawaii Subclass, among other things, that the products were premium and durable smartphones

10 with high performance. Such pattern of conduct was uniform in nature with respect to the

11 marketing and sale of the product.

12 292. Defendant also knowingly concealed, suppressed and consciously omitted material

13 facts from Plaintiff and other members of the members of the Hawaii Subclass – such as the

14 processor throttling defect and/or that iOS update detailed herein would foment manifestation of

15 the defect – knowing that consumers would rely on the advertisements and Defendant’s uniform

16 representations concerning the iPhone’s high performance and functionality in purchasing and/or

17 updating their iPhones.

18 293. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

19 create the likelihood of deception.

20 294. Until the present, Defendant knowingly accepted the benefits of their deception and

21 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

22 services.

23 295. As a proximate result of the above-described Consumer Protection Act violations,

24 Plaintiff and members of the Hawaii Subclass: (a) purchased and used iPhones when they would

25 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

26 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)
27 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

28

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1 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

2 processor throttling defect.

3 296. As a direct and proximate result of these deceptive commercial practices, Plaintiff

4 and the members of the Hawaii Subclass have been damaged, and are entitled to recover actual

5 damages to the extent permitted by law, including class action rules, in an amount to be proven at

6 trial.

7 297. Plaintiff and Hawaii Subclass Members also seek appropriate equitable relief,

8 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

9 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

10 Plaintiff and the Class also seek attorneys’ fees and any other just and proper relief available under

11 the HCPA.

12
COUNT XVI
13 VIOLATION OF THE DECEPTION PRONG OF ILLINOIS CONSUMER FRAUD AND
DECEPTIVE BUSINESS PRACTICE ACT (“IFCA”) (815 ILCS 505, et seq.)
14 (Brought on behalf of the Illinois Subclass)

15 298. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

16 299. Plaintiff Getzler brings this claim individually and on behalf of the Illinois Subclass.

17 300. Plaintiff and class members who purchased iPhones are “consumers” under the

18 IFCA.

19 301. Defendant’s practices, acts, policies and course of conduct violated the IFCA in that:

20 a. Defendant engaged in deceptive acts and practices in or affecting commerce,

21 through their advertisements and packaging of iPhones, by representing to Plaintiff and members of

22 the Illinois Subclass, among other things, that the products were premium and durable smartphones

23 with high performance and/or that the iOS update would improve the performance of smartphones

24 when in fact would foment the manifestation of the defect. Such pattern of conduct was uniform in

25 nature with respect to the marketing and sale of the product.

26 b. Defendant also knowingly concealed, suppressed and consciously omitted
27 material facts from Plaintiff and other members of the members of the Illinois Subclass – such as

28 the processor throttling defect and/or that the iOS update would foment the manifestation of the

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1 defect – – intending or knowing that consumers would rely on the advertisements and Defendant’s

2 uniform representations concerning the iPhone’s high performance and functionality in purchasing

3 and/or updating their iPhones.

4 302. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

5 create the likelihood of deception.

6 303. Until the present, Defendant knowingly accepted the benefits of their deception and

7 improper conduct in the form of profits from the increased sale of the iPhone and/or profits from

8 paid repair services.

9 304. As a proximate result of the above-described Consumer Protection Act violations,

10 Plaintiff and members of the Illinois Subclass: (a) purchased and used iPhones when they would

11 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

12 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)

13 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

14 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

15 processor throttling defect.

16 305. As a direct and proximate result of these deceptive commercial practices, Plaintiff

17 and the members of the Illinois Subclass have been damaged, and are entitled to recover actual

18 damages to the extent permitted by law, including class action rules, in an amount to be proven at

19 trial.

20 306. Plaintiff and Illinois Subclass Members also seek appropriate equitable relief,

21 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

22 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

23 Plaintiff and the Class also seek attorneys’ fees and any other just and proper relief available under

24 IFCA.

25 COUNT XVII
MARYLAND BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY)
26 (IN THE ALTERNATIVE)
(Brought on behalf of the Maryland Subclass)
27

28 307. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

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1 308. Plaintiffs Dennis Johnson and Kelly Schulze (for the remainder of this section,

2 “Plaintiffs”) bring this claim individually and on behalf of the Maryland Subclass.

3 309. As detailed herein, iPhones are not “fit for the ordinary purposes for which such

4 goods are used.” Specifically, Plaintiff’s iPhone ceased to function after less than two years of

5 operation, despite Defendant’s advertisement representing iPhones as premium and durable

6 flagship phones with high-end and operational features, as described above. See Md. Code Ann.,

7 Com. Law § 2-314.

8 310. The durational limitation of the implied warranty of merchantability is ineffective

9 because it was not “conspicuous”, insofar as it was buried in the box that contained the phones of

10 Plaintiffs and the members of the Maryland Subclass. The durational limitation of the implied

11 warranty of merchantability is also ineffective because it was not “conscionable”, insofar as Apple

12 maintained far superior bargaining power and knowledge as the world-wide leading manufacturer

13 of smartphones (including their component chip parts).

14 311. Plaintiffs and members of the Maryland Subclass would not have purchased their

15 iPhones or would have paid less for them had they known the true defective nature of the iPhones,

16 and specifically their processor throttling defect causing them to fail well before the end of their

17 useful lifespans.

18 312. Alternatively, Plaintiffs and members of the Maryland Subclass would not have

19 updated their iPhones with the iOS update detailed herein that foments the manifestation of the

20 defect, when said update was not fit for the ordinary purposes for which such goods are used.

21 313. As a result of Defendant’s breach of warranty, Plaintiffs and the members of the

22 Maryland Subclass have been damaged in the amount of the purchase price or, in the alternative,

23 the diminished value of their iPhones and any consequential damages resulting from their

24 purchases including but not limited to out-of-pocket repair costs.

25
COUNT XVIII
26 (VIOLATION OF THE DECEPTION PRONG OF THE MARYLAND CONSUMER
PROTECTION ACT (MD. CODE COM. LAW §§ 13-101, et seq.)
27 (Brought on behalf of the Maryland Subclass)

28 314. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

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1 315. Plaintiffs Dennis Johnson and Kelly Schulze (for the remainder of this section,

2 “Plaintiffs”) bring this claim individually and on behalf of the Maryland Subclass.

3 316. Apple, Plaintiffs and the members of the Maryland Subclass are “persons” within

4 the meaning of Md. Code Com. Law § 13-101(h).

5 317. Defendant’s practices, acts, policies and course of conduct violated the Maryland

6 Consumer Protection Act, Md. Code Com. Law § 13-101, et seq., in that:

7 a. Defendant engaged in deceptive acts and practices in or affecting commerce,

8 through their advertisements and packaging of iPhones, by representing to Plaintiffs and members

9 of the Maryland Subclass, among other things, that the products were premium and durable

10 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

11 the marketing and sale of the product.

12 b. Defendant also knowingly concealed, suppressed and consciously omitted

13 material facts from Plaintiffs and other members of the members of the Maryland Subclass – such

14 as the processor throttling defect and/or that iOS update detailed herein would foment

15 manifestation of the defect – knowing that consumers would rely on the advertisements and

16 Defendant’s uniform representations concerning the iPhone’s high performance and functionality

17 in purchasing and/or updating their iPhones.

18 318. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

19 create the likelihood of deception.

20 319. Until the present, Defendant knowingly accepted the benefits of their deception and

21 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

22 services.

23 320. As a proximate result of the above-described Consumer Protection Act violations,

24 Plaintiffs and members of the Maryland Subclass: (a) purchased and used iPhones when they

25 would not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of

26 purchase or, alternatively, the diminished value of the iPhones with the processor throttling defect;
27 (c) suffered and/or will suffer additional economic losses in purchasing another smartphone and/or

28

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1 out of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to

2 the processor throttling defect.

3 321. As a direct and proximate result of these deceptive commercial practices, Plaintiffs

4 and the members of the Maryland Subclass have been damaged, and are entitled to recover actual

5 damages to the extent permitted by law, including class action rules, in an amount to be proven at

6 trial.

7 322. Plaintiffs and Maryland Subclass Members also seek appropriate equitable relief,

8 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

9 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

10 Plaintiffs and the Class also seek attorneys’ fees and any other just and proper relief available under

11 the Maryland CPA.

12
COUNT XIX
13 VIOLATION OF THE UNFAIR PRONG OF THE MARYLAND CONSUMER
PROTECTION ACT (MD. CODE COM. LAW §§ 13-101, et seq.)
14 (Brought on behalf of the Maryland Subclass)

15 323. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

16 324. Plaintiffs Dennis Johnson and Kelly Schulze (for the remainder of this section,

17 “Plaintiffs”) bring this claim individually and on behalf of the Maryland Subclass.

18 325. Apple, Plaintiffs and the members of the Maryland Subclass are “persons” within

19 the meaning of Md. Code Com. Law § 13-101(h).

20 326. Defendant’s practices, acts, policies and course of conduct violated the Maryland

21 Consumer Protection Act, Md. Code Com. Law § 13-101, et seq., in that:

22 a. Defendant engaged in unfair acts and practices in or affecting commerce,

23 through their advertisements and packaging of iPhones, by representing to Plaintiffs and members

24 of the Maryland Subclass, among other things, that the products were premium and durable

25 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

26 the marketing and sale of the product.
27 b. Defendant also knowingly concealed, suppressed and consciously omitted

28 material facts from Plaintiffs and other members of the members of the Maryland Subclass – such

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1 as the processor throttling defect – knowing that consumers would rely on the advertisements and

2 Defendant’s uniform representations concerning the iPhone’s high performance and functionality

3 in purchasing their iPhones.

4 c. Defendant also provided iOS updates that fomented the defect’s

5 manifestation without disclosing same to iPhone owners.

6 327. Defendant’s acts and omissions resulted in a substantial injury that is not

7 outweighed by any countervailing benefits to the consumer or to competition that the practice

8 produces and is not the type of injury that a consumer could reasonably have avoided.

9 328. Until the present, Defendant knowingly accepted the benefits of their unfair conduct

10 in the form of profits from the increased sale of the iPhone and/or paid repair services.

11 329. As a proximate result of the above-described Consumer Protection Act violations,

12 Plaintiffs and members of the Maryland Subclass: (a) purchased and used iPhones when they

13 would not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of

14 purchase or, alternatively, the diminished value of the iPhones with the processor throttling defect;

15 (c) suffered and/or will suffer additional economic losses in purchasing another smartphone and/or

16 paid repair services; and (d) suffered and will suffer additional economic losses incidental to the

17 processor throttling defect.

18 330. As a direct and proximate result of these unfair practices, Plaintiffs and the

19 members of the Maryland Subclass have been damaged and are entitled to recover actual damages

20 to the extent permitted by law, including class action rules, in an amount to be proven at trial.

21 331. Plaintiffs and Maryland Subclass Members also seek appropriate equitable relief,

22 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

23 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

24 Plaintiffs and the Class also seek attorneys’ fees and any other just and proper relief available under

25 the Maryland CPA.

26 ///
27 ///

28 ///

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1 COUNT XX
DECEPTIVE TRADE PRACTICES IN VIOLATION OF MICHIGAN CONSUMER
2 PROTECTION ACT (“MCPA”), (MICHIGAN COMP. LAWS ANN. § 445.903 et seq.)
(Brought on behalf of the Michigan Subclass)
3

4 332. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

5 333. Plaintiff Charles Saadiq (for the remainder of this section, “Plaintiff”) brings this

6 claim individually and on behalf of the Michigan Subclass under the “deceptive conduct” branch of

7 the MCPA.

8 334. At all relevant times hereto, Defendant was a “person” engaged in “trade or

9 commerce” within the meaning of MCPA, M.C.L.A. § 445.902(1)(d) and (g).

10 335. Defendant’s practices, acts, policies and course of conduct violated the MCPA,

11 M.C.L.A. § 445.902(1) in that:

12 a. Defendant engaged in deceptive acts and practices in or affecting commerce,

13 through their advertisements and packaging of iPhones, by representing to Plaintiff and members of

14 the Pennsylvania Subclass, among other things, that the products were premium and durable

15 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

16 the marketing and sale of the product.

17 b. Defendant also knowingly concealed, suppressed and consciously omitted

18 material facts from Plaintiff and other members of the members of the Pennsylvania Subclass –

19 such as the processor throttling defect and/or that iOS update detailed herein would foment

20 manifestation of the defect – knowing that consumers would rely on the advertisements and

21 Defendant’s uniform representations concerning the iPhone’s high performance and functionality

22 in purchasing and/or updating their iPhones.

23 336. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

24 create the likelihood of deception.

25 337. Until the present, Defendant knowingly accepted the benefits of their deception and

26 improper conduct in the form of profits from the increased sale of the iPhone and paid repair
27 services.

28

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1 338. As a proximate result of the above-described Consumer Protection Act violations,

2 Plaintiff and members of the Michigan Subclass: (a) purchased and used iPhones when they would

3 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

4 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)

5 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

6 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

7 processor throttling defect.

8 339. As a direct and proximate result of these deceptive commercial practices, Plaintiff

9 and the members of the Michigan Subclass have been damaged, and are entitled to recover the

10 greater of (a) actual damages to the extent permitted by law, including class action rules, in an

11 amount to be proven at trial and (b) statutory damages in the amount of $100 for each Plaintiff and

12 each Pennsylvania Class Member.

13 340. Plaintiff and Michigan Subclass Members also seek appropriate equitable relief,

14 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

15 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

16 Plaintiff and the Class also seek attorneys’ fees and any other just and proper relief available under

17 Mich. Comp. L. Ann. § 445.911.

18 COUNT XXI
BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
19 (On Behalf of the Michigan Subclass)

20 341. Plaintiffs repeat the above allegations as if fully set forth herein

21 342. Plaintiffs Charles Saadiq brings this Count on behalf of the Michigan Subclass.

22 343. The iPhones are “goods” withing the meaning of Mich. Comp. Laws Ann.

23 § 440.2314.

24 344. Defendant is and was at all relevant times a merchant with respect to smartphones under

25 Mich. Comp. Laws Ann. § 440.2104.

26 345. A warranty that the iPhones were in merchantable condition is implied by law in the
27 instant transactions.

28

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1 346. These iPhones, when sold and at all times thereafter, were not in merchantable

2 condition and are not fit for the ordinary purpose for which phones are used.

3 347. The iOS update provided by Apple masked the unexpected shutdown defect’s

4 manifestation while introducing the throttling defect without disclosing same to iPhone owners.

5 348. The iPhones were thus not in merchantable condition and are not fit for the ordinary

6 purpose for which phones are used.

7 349. Defendant was provided notice of these issues by complaints lodged by consumers

8 through blogs, warranty claims and elsewhere as detailed herein.

9 350. As a direct and proximate result of Defendant’s breach of the warranties of

10 merchantability, Plaintiff and the members of the Michigan Subclass have been damaged in an amount

11 to be proven at trial.

12
COUNT XXII
13 DECEPTIVE CONDUCT IN VIOLATION OF THE OHIO CONSUMER SALES
PRACTICES ACT (“OCSPA”)
14 Ohio Rev. Code. § 1345.01, et seq.
(On Behalf of the Ohio Subclass)
15

16 351. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

17 352. This Count is brought on behalf of Plaintiffs Suzanne Carter, Kelly Jankowski, and

18 Tiffany Williams, and the Ohio Subclass.

19 353. At all times relevant to this suit, Apple was a “supplier,” as defined in the Ohio

20 Consumer Sales Practices Act. Ohio Rev. Code § 1345.01.

21 354. At all times relevant to this suit, Plaintiffs and the Ohio Class members were

22 “consumers,” as defined in the Ohio Consumer Sales Practices Act. Ohio Rev. Code § 1345.01.

23 355. As a result of placing a defective product into the stream of commerce, Apple has

24 breached its implied warranty in tort, which is a deceptive act as defined in Ohio Rev. Code §

25 1345.09(B).

26 356. Defendant engaged in other deceptive acts in or affecting commerce, through their
27 advertisements and packaging of iPhones, by representing to Plaintiffs and members of the Ohio

28 Subclass, among other things, that the products were premium and durable smartphones with high

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1 performance. Such pattern of conduct was uniform in nature with respect to the marketing and sale

2 of the product.

3 357. Defendant also knowingly concealed, suppressed and consciously omitted material

4 facts from Plaintiffs and other members of the members of the Ohio Subclass – such as the

5 processor throttling defect and/or that iOS update detailed herein would foment manifestation of

6 the defect – knowing that consumers would rely on the advertisements and Defendant’s uniform

7 representations concerning the iPhone’s high performance and functionality in purchasing and/or

8 updating their iPhones.

9 358. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

10 create the likelihood of deception.

11 359. Until the present, Defendant knowingly accepted the benefits of their deception and

12 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

13 services.

14 360. The Ohio Attorney General has made available for public inspection prior state

15 court decisions which have held that acts and omissions similar to kinds alleged in this Complaint,

16 including, but not limited to, the concealment and/or non-disclosure of a dangerous defect,

17 constitute deceptive sales practices in violation of Ohio’s Consumer Sales Practices Act. These

18 cases include, but are not limited to, the following:

19 a. Mason v. Mercedes Benz USA, LLC (OPIF #10002382);

20 b. State ex rel. Betty D. Montgomery v. Ford Motor Co. (OPIF #10002123);

21 c. State ex rel. Betty D. Montgomery v. Bridgestone/Firestone, Inc. (OPIF
#10002025);
22
d. Bellinger v. Hewlett-Packard Co., No. 20744, 2002 Ohio App. LEXIS 1573
23 (Ohio Ct. App. Apr. 10, 2002) (OPIF #10002077);

24 e. Borror v. MarineMax of Ohio, No. OT-06-010, 2007 Ohio App. LEXIS 525
(Ohio Ct. App. Feb. 9, 2007) (OPIF #10002388);
25
f. State ex rel. Jim Petro v. Craftmatic Organization, Inc. (OPIF #10002347);
26
g. Mark J. Cranford, et al. v. Joseph Airport Toyota, Inc. (OPIF #10001586);
27
h. State ex rel. William J. Brown v. Harold Lyons, et al. (OPIF #10000304);
28

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1 i. Brinkman v. Mazda Motor of America, Inc., (OPIF #10001427);

2 j. Khouri v. Don Lewis, (OPIF #100001995);

3 k. Mosley v. Performance Mitsubishi aka Automanage, (OPIF #10001326);

4 l. Walls v. Harry Williams dba Butch’s Auto Sales, (OPIF #10001524); and,

5 m. Brown v. Spears, (OPIF #10000403).

6 361. Apple committed these and other deceptive acts in connection with the marketing

7 and sale of the iPhones.

8 362. As a proximate result of the above-described Consumer Protection Act violations,

9 Plaintiffs and members of the Ohio Subclass: (a) purchased and used iPhones when they would not

10 otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase or,

11 alternatively, the diminished value of the iPhones with the processor throttling defect; (c) suffered

12 and/or will suffer additional economic losses in purchasing another smartphone and/or out of

13 pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

14 processor throttling defect.

15 363. As a direct and proximate result of these deceptive commercial practices, Plaintiffs

16 and the members of the Ohio Subclass have been damaged, and are entitled to recover actual

17 damages to the extent permitted by law, including class action rules, in an amount to be proven at

18 trial.

19 364. Plaintiffs and Ohio Subclass Members also seek appropriate equitable relief,

20 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

21 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

22 Plaintiffs and the Class also seek attorneys’ fees and any other just and proper relief available under

23 the OCSPA. Ohio Rev. Code § 1345.09.

24 COUNT XXIII
(VIOLATIONS OF THE PENNSYLVANIA UNFAIR TRADE PRACTICES AND
25 CONSUMER PROTECTION LAW (“UTPCPL”), 73 Pa.C.S.A. §§ 201-1 et seq.)
(Brought on behalf of the Pennsylvania Subclass)
26
27 365. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

28 366. Plaintiffs Noelle Boehme, Jenifer Kachik, Ryan Ward, and Crystal Saldana (for the

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1 remainder of this section, “Plaintiffs”) bring this claim individually and on behalf of the

2 Pennsylvania Subclass.

3 367. Defendant’s practices, acts, policies and course of conduct violated the UTPCPL, §

4 201-3 in that:

5 a. Defendant engaged in deceptive acts and practices in or affecting commerce,

6 through their advertisements and packaging of iPhones, by representing to Plaintiffs and members

7 of the Pennsylvania Subclass, among other things, that the products were premium and durable

8 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

9 the marketing and sale of the product.

10 b. Defendant also knowingly concealed, suppressed and consciously omitted

11 material facts from Plaintiffs and other members of the members of the Pennsylvania Subclass –

12 such as the processor throttling defect and/or that iOS update detailed herein would foment

13 manifestation of the defect – knowing that consumers would rely on the advertisements and

14 Defendant’s uniform representations concerning the iPhone’s high performance and functionality

15 in purchasing and/or updating their iPhones.

16 368. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

17 create the likelihood of deception.

18 369. Until the present, Defendant knowingly accepted the benefits of their deception and

19 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

20 services.

21 370. As a proximate result of the above-described Consumer Protection Act violations,

22 Plaintiffs and members of the Pennsylvania Subclass: (a) purchased and used iPhones when they

23 would not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of

24 purchase or, alternatively, the diminished value of the iPhones with the processor throttling defect;

25 (c) suffered and/or will suffer additional economic losses in purchasing another smartphone and/or

26 out of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to
27 the processor throttling defect.

28 371. As a direct and proximate result of these deceptive commercial practices, Plaintiffs

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1 and the members of the Pennsylvania Subclass have been damaged, and are entitled to recover the

2 greater of (a) actual damages to the extent permitted by law, including class action rules, in an

3 amount to be proven at trial and (b) statutory damages in the amount of $100 for each Plaintiff and

4 each Pennsylvania Class Member.

5 372. Plaintiffs and Pennsylvania Subclass Members also seek appropriate equitable relief,

6 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

7 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

8 Plaintiffs and the Class also seek attorneys’ fees and any other just and proper relief available under

9 the UTPCPL (§ 201-9.2).

10
COUNT XXIV
11 VIOLATIONS OF SOUTH CAROLINA’S CONSUMER
PROTECTION CODE (“SCCPA”)S.C. Code. Ann. §§ 37-1-101, et. seq.
12 (On Behalf of the South Carolina Subclass)

13 373. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

14 374. This Count is brought on behalf of Plaintiffs Patty Purriss and Charlene Lowery, and

15 the South Carolina Subclass.

16 375. Defendant engaged in consumer protection violations in or affecting commerce,

17 through their advertisements and packaging of iPhones, by representing to Plaintiffs and members

18 of the South Carolina Subclass, among other things, that the products were premium and durable

19 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

20 the marketing and sale of the product.

21 376. Defendant also knowingly concealed, suppressed and consciously omitted material

22 facts from Plaintiffs and other members of the members of the South Carolina Subclass – such as

23 the processor throttling defect and/or that iOS update detailed herein would foment manifestation

24 of the defect – knowing that consumers would rely on the advertisements and Defendant’s uniform

25 representations concerning the iPhone’s high performance and functionality in purchasing and/or

26 updating their iPhones.
27 377. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

28 create the likelihood of deception.

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1 378. Until the present, Defendant knowingly accepted the benefits of their deception and

2 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

3 services.

4 379. As a proximate result of the above-described Consumer Protection Act violations,

5 Plaintiffs and members of the South Carolina Subclass: (a) purchased and used iPhones when they

6 would not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of

7 purchase or, alternatively, the diminished value of the iPhones with the processor throttling defect;

8 (c) suffered and/or will suffer additional economic losses in purchasing another smartphone and/or

9 out of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to

10 the processor throttling defect.

11 380. As a direct and proximate result of these deceptive commercial practices, Plaintiffs

12 and the members of the South Carolina Subclass have been damaged, and are entitled to recover

13 actual damages to the extent permitted by law, including class action rules, in an amount to be

14 proven at trial.

15 381. Plaintiffs and South Carolina Subclass Members also seek appropriate equitable

16 relief, including an order requiring Apple to adequately disclose and remediate the defect plaguing

17 its iPhones, and an order enjoining Apple from incorporating the defect into its phones in the

18 future. Plaintiffs and the Class also seek attorneys’ fees and any other just and proper relief

19 available under the SCCPA.

20
COUNT XXV
21 TEXAS BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
(IN THE ALTERNATIVE)
22 (Brought on behalf of the Texas Subclass)

23 382. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

24 383. Plaintiffs Margie Cleveland, Lillie Diaz, Craig Moore, Andrew Yashchuk, and

25 Heather Schwartz bring this claim individually and on behalf of the Texas Subclass.

26 384. As detailed herein, iPhones are not “fit for the ordinary purposes for which such
27 goods are used.” Specifically, Plaintiffs’ iPhones ceased to function after less than two years of

28 operation, despite Defendant’s advertisement representing iPhones as premium and durable

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CLASS ACTION COMPLAINT
Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 62 of 67

1 flagship phones with high-end and operational features, as described above. See Tex. Bus. & Com.

2 Code § 2-104.

3 385. Apple is a “merchant” within the meaning of Tex. Bus. & Com. Code § 2-104 with

4 respect to the iPhones.

5 386. The durational limitation of the implied warranty of merchantability is ineffective

6 because it was not “conspicuous”, insofar as it was buried in the box that contained the phones of

7 Plaintiffs and the members of the Maryland Subclass. The durational limitation of the implied

8 warranty of merchantability is also ineffective because it was not “conscionable”, insofar as Apple

9 maintained far superior bargaining power and knowledge as the world-wide leading manufacturer

10 of smartphones (including their component chip parts).

11 387. Plaintiffs and members of the Texas Subclass would not have purchased their

12 iPhones or would have paid less for them had they known the true defective nature of the iPhones,

13 and specifically their processor throttling defect causing them to fail well before the end of their

14 useful lifespans and/or that the iOS update would foment the defect.

15 388. Alternatively, Plaintiffs and members of the Texas Sublcass would not have updated

16 their iPhones with the iOS update detailed herein that foments the manifestation of the defect, when

17 said update was not fit for the ordinary purposes for which such goods are used.

18 389. As a result of Defendant’s breach of warranty, Plaintiffs and the members of the

19 Texas Subclass have been damaged in the amount of the purchase price or, in the alternative, the

20 diminished value of their iPhones and any consequential damages resulting from their purchases.

21 COUNT XXVI
VIOLATION OF THE TEXAS DECEPTIVE TRADE PRACTICES ACT
22 (“TDTPA”) (TEX. BUS. & COM. CODE §§ 17.41, et seq.)
(Brought on behalf of the Texas Subclass)
23

24 390. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

25 391. Plaintiffs Margie Cleveland, Lillie Diaz, Craig Moore, Andrew Yashchuk, and

26 Heather Schwartz bring this claim individually and on behalf of the Texas Subclass.
27 392. Plaintiffs and class members who purchased iPhones are “consumers” under the

28 TDTPA.

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 63 of 67

1 393. Defendant’s practices, acts, policies and course of conduct violated the TDTPA in that:

2 a. Defendant engaged in deceptive acts and practices in or affecting commerce,

3 through their advertisements and packaging of iPhones, by representing to Plaintiffs and members

4 of the Texas Subclass, among other things, that the products were premium and durable

5 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

6 the marketing and sale of the product.

7 b. Defendant also knowingly concealed, suppressed and consciously omitted material

8 facts from Plaintiffs and other members of the members of the Texas Subclass – such as the

9 processor throttling defect and/or that the iOS update would foment manifestation of the defect –

10 knowing that consumers would rely on the advertisements and Defendant’s uniform representations

11 concerning the iPhone’s high performance and functionality and/or Defendant’s representations

12 regarding the improvement of the iOS updates in purchasing and/or updating their iPhones.

13 394. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

14 create the likelihood of deception.

15 395. Until the present, Defendant knowingly accepted the benefits of their deception and

16 improper conduct in the form of profits from the increased sale of the iPhone and/or paid repair

17 services.

18 396. As a proximate result of the above-described Consumer Protection Act violations,

19 Plaintiffs and members of the Texas Subclass: (a) purchased and used iPhones when they would

20 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

21 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)

22 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

23 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

24 processor throttling defect.

25 397. As a direct and proximate result of these deceptive commercial practices, Plaintiffs and

26 the members of the Texas Subclass have been damaged, and are entitled to recover actual damages to
27 the extent permitted by law, including class action rules, in an amount to be proven at trial.

28

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 64 of 67

1 398. Plaintiffs and Texas Subclass Members also seek appropriate equitable relief,

2 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

3 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

4 Plaintiffs and the Class also seek attorneys’ fees and any other just and proper relief available under

5 TDTPA.

6 399. For those Texas Subclass Members who wish to rescind their purchases, they are

7 entitled under § 17.05(b)(4) to rescission and other relief necessary to restore any money or

8 property that was acquired from them based on violations of the TDTPA.

9 400. Plaintiffs presently does not claim the relief sought above pursuant to Tex. Bus.

10 Com. Code § 17.505, until Plaintiffs’ counsel, on behalf of Plaintiffs and the Texas Subclass, serve

11 Defendant with notice of its alleged violations of the TDTPA relating to the iPhones purchased by

12 Plaintiffs and the Texas Subclass Members, and demanding that Defendant correct or agree to

13 correct the actions described above therein. If Defendant fails to do so, Plaintiffs seeks all damages

14 and relief to which Plaintiffs and the Texas Subclass are entitled.

15 COUNT XXVII
VIOLATION OF VIRGINIA’S CONSUMER PROTECTION ACT (“VCPA”)
16 Va. Code. Ann. § 59.1-200(A)(5)(6) and (14), et. seq.
(On Behalf of the Virginia Subclass)
17

18 401. Plaintiffs repeat and reallege the above allegations as if fully set forth herein.

19 402. This Count is brought on behalf of Plaintiff Joshua Mosby, and the Virginia

20 Subclass.

21 403. Defendant engaged in consumer protection violations in or affecting commerce,

22 through their advertisements and packaging of iPhones, by representing to Plaintiff and members of

23 the Virginia Subclass, among other things, that the products were premium and durable

24 smartphones with high performance. Such pattern of conduct was uniform in nature with respect to

25 the marketing and sale of the product.

26 404. Defendant also knowingly concealed, suppressed and consciously omitted material
27 facts from Plaintiff and other members of the Virginia Subclass – such as the processor throttling

28 defect and/or that iOS update detailed herein would foment manifestation of the defect – knowing

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 65 of 67

1 that consumers would rely on the advertisements and Defendant’s uniform representations

2 concerning the iPhone’s high performance and functionality in purchasing and/or updating their

3 iPhones.

4 405. Defendant’s acts and omissions possessed the tendency or capacity to mislead or

5 create the likelihood of deception.

6 406. Until the present, Defendant knowingly accepted the benefits of their deception and

7 improper conduct in the form of profits from the increased sale of the iPhone and paid repair

8 services.

9 407. As a proximate result of the above-described Consumer Protection Act violations,

10 Plaintiff and members of the Virginia Subclass: (a) purchased and used iPhones when they would

11 not otherwise have done so; (b) suffered economic losses consisting of the iPhone cost of purchase

12 or, alternatively, the diminished value of the iPhones with the processor throttling defect; (c)

13 suffered and/or will suffer additional economic losses in purchasing another smartphone and/or out

14 of pocket repair costs; and (d) suffered and will suffer additional economic losses incidental to the

15 processor throttling defect.

16 408. As a direct and proximate result of these deceptive commercial practices, Plaintiff

17 and the members of the Virginia Subclass have been damaged, and are entitled to recover actual

18 damages to the extent permitted by law, including class action rules, in an amount to be proven at

19 trial.

20 409. Plaintiff and Virginia Subclass Members also seek appropriate equitable relief,

21 including an order requiring Apple to adequately disclose and remediate the defect plaguing its

22 iPhones, and an order enjoining Apple from incorporating the defect into its phones in the future.

23 Plaintiff and the Class also seek attorneys’ fees and any other just and proper relief available under

24 the VCPA.

25 PRAYER FOR RELIEF

26 WHEREFORE, Plaintiffs pray for judgment as follows:
27 a. For an order certifying the proposed Class and Subclasses and appointing Plaintiffs

28 and their counsel to represent the classes;

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Case 3:18-cv-00440-LB Document 1 Filed 01/19/18 Page 67 of 67

1
Daniel C. Levin, Esquire *
2 Charles E. Schaffer, Esquire
LEVIN SEDRAN & BERMAN
3
510 Walnut Street, Suite 500
4 Philadelphia, PA 19102
Tel: (215) 592-1500
5 Fax: (215) 592-4663
6 Nicholas A. Migliaccio, Esquire*
Jason S. Rathod, Esquire*
7
MIGLIACCIO & RATHOD LLP
8 412 H Street N.E., Ste. 302
Washington, DC 20002
9 Tel: (202) 470-3520
10 D. Aaron Rihn, Esquire *
11 ROBERT PEIRCE & ASSOCIATES, P.C.
2500 Gulf Tower, 707 Grant Street
12 Pittsburgh, PA 15219-1918
Tel: (412) 281-7229
13 Fax: (412) 281-4229
14 Russ Herman, Esquire*
15 Stephen Herman, Esquire*
HERMAN, HERMAN & KATZ, LLC
16 820 O’Keefe Avenue
New Orleans, Louisiana 70113
17 Tel: (504) 581-4892
Fax: (504) 561-6024
18

19 Attorneys for Plaintiffs

20 Khendle Williams, Cynthia Stacy, Gene
Schlaefer, Trent Young, Ashley Antonucci,
21 Kristin Edgerly, Melissa Koncinsky, Sandra
Merola, Derrick Marzette, Ruth Beauchan,
22
Danielle Sanguedolce, Dennis Johnson, Kelly
23 Schulze, Charles Saadiq, Suzanne Carter, Kelly
Jankowski, Tiffany Williams, Noelle Boehme,
24 Jenifer Kachik, Crystal Saldana, Ryan Ward,
Patty Burriss, Charlene Lowery, Margie
25 Cleveland, Lillie Diaz, Craig Moore, Heather
Schwartz, Andrew Yashchuk, and Joshua Mosby
26
27 * pro hac vice admission to be sought

28

66
CLASS ACTION COMPLAINT

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