Trujillo v. Apple Computer, Inc. et al Doc. 6 Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 1 of 21 I N THE UNITED STATES DISTRICT COURT F O R THE NORTHERN DISTRICT OF ILLINOIS E A S T E R N DIVISION J O S E TRUJILLO, individually a n d on behalf of all others s i m i l a r l y situated, Plaintiff, v. A P P L E COMPUTER, INC., a California C o r p o r a t i o n , and AT&T MOBILITY LLC, a Georgia Corporation, Defendants. ) ) ) ) ) ) ) ) ) ) ) No. 0 7 CV 04946 J u d g e Kennelly M a g . Judge Ashman F I R S T AMENDED CLASS ACTION COMPLAINT P l a i n t i f f , JOSE TRUJILLO ("Plaintiff" or "Trujillo"), for h i s Class Action Complaint on behalf of himself and all others s i m i l a r l y situated, by and through his attorneys, LARRY D. DRURY, L T D . , upon personal knowledge as to facts pertaining to himself a n d upon information and belief as to all other matters, based on t h e investigation of his counsel, against Defendants APPLE C O M P U T E R , INC. ("Apple"), and AT&T MOBILITY, LLC ("AT&T") ( c o l l e c t i v e l y hereinafter "Defendants") states as follows: INTRODUCTION T h i s case arises out of Defendants' purposeful and fraudulent c o n c e a l m e n t to purchasers of its iPhone cellular telephone that t h e y will be required to incur an annual fee of $85.95 as part of D e f e n d a n t s ' battery replacement program. PARTIES 1. P l a i n t i f f , Trujillo, at all times relevant hereto resided i n village of Melrose Park, county of Cook, Illinois. 1 Dockets.Justia.com  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 2 of 21 2. A t all times relevant hereto, Defendant, Apple, was a C a l i f o r n i a corporation with facilities located throughout I l l i n o i s and the United States, whose headquarters are l o c a t e d in Cupertino, California and who is doing b u s i n e s s in Cook County, Illinois. 3. A t all times relevant hereto, Defendant, AT&T Mobility, L L C , was a Georgia corporation with facilities located t h r o u g h o u t Illinois and the United States, whose h e a d q u a r t e r s are located in Atlanta, Georgia and who is d o i n g business in Cook County, Illinois. J U R I S D I C T I O N & VENUE 4. T h i s Court has jurisdiction over this action pursuant to 2 8 U.S.C. §1331 and/or §1332, as amended by the Class A c t i o n Fairness Act of 2005, because the matter in c o n t r o v e r s y exceeds $5,000,000.00, exclusive of interest a n d costs, and is a class action in which some members of t h e class are citizens of states different than D e f e n d a n t s . See 28 U.S.C. §1332(d)(2)(A). in that the D e f e n d a n t has transacted business and committed acts r e l a t i n g to the matters complained of herein in this s t a t e , and the Plaintiff and Defendants are citizens of s e p a r a t e states. 5. V e n u e is proper in this District pursuant to 28 U.S.C. § 1 3 9 1 ( a ) ( 2 ) because a substantial part of the acts giving r i s e to Plaintiff's claims occurred in this District. 2  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 3 of 21 6. T h i s Court has supplemental jurisdiction over the state l a w claims herein under 28 U.S.C. §1367. S U B S T A N T I V E ALLEGATIONS 7. O n or about June 29, 2007 Apple launched, to much f a n f a r e , its iPhone, a hybrid cell phone, iPod media p l a y e r , and wireless web-browsing device. 8. P l a i n t i f f purchased his iPhone from an Apple retail store l o c a t e d in OakBrook, Illinois, for $533.93. 9. I t is estimated that Apple sold over 500,000 iPhones w i t h i n the first week following its launch. These d e v i c e s were sold in Apple and AT&T retail stores and o n l i n e through Apple's website. 10. A T & T is the iPhone's exclusive carrier, and along with A p p l e retails the iPhone in their retail stores. 11. A p p l e marketed its iPhone as a "revolutionary new mobile p h o n e " that incorporates "high technology". 12. U n k n o w n to the Plaintiff, and undisclosed to the public, p r i o r to purchase, the iPhone is a sealed unit with its b a t t e r y soldered on the inside of the device so that it c a n n o t be changed by the owner. 13. T h e battery enclosed in the iPhone can only be charged a p p r o x i m a t e l y 300 times before it will be in need of r e p l a c e m e n t , necessitating a new battery annually for o w n e r s of the iPhone. 14. A p p l e maintains a "battery replacement program" for the i P h o n e which requires users to submit their phone to 3  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 4 of 21 A p p l e for service. For the battery replacement and/or s e r v i c e , Apple charges $79.00 plus $6.95 for shipping and h a n d l i n g , totaling $85.95 per service. 15. T h e battery replacement takes three days, and while the i P h o n e is under repair, Apple provides a `loaner iPhone' f o r $29.00. 16. D u r i n g the repair and/or service to the iPhone under the b a t t e r y replacement program, all data is erased from the i P h o n e , including contact phone numbers, etc. 17. A l t h o u g h Apple and AT&T outlined its cellular service r a t e s and many other features of the iPhone in advance of i t s launch, Apple and AT&T waited to disclose the d u r a b i l i t y of its battery, the terms and conditions of i t s battery replacement program and `loaner' program, and t h e cost of same, until after the iPhone went on sale. 18. T h e iPhone packaging and its enclosed manuals and/or p a p e r s failed to inform the Plaintiff and the class of t h e durability of the iPhone battery, the terms and c o n d i t i o n s of its battery replacement program and ` l o a n e r ' program, and the cost of same. 19. T h e Defendants' marketing and promotion of the iPhone f a i l e d to inform the Plaintiff and the class of the d u r a b i l i t y of its battery, the terms and conditions of i t s battery replacement program and `loaner' program, and t h e cost of same. 4  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 5 of 21 20. O n or about Thursday, July 5, 2007 Apple spokesperson, J e n n i f e r Hakes, said Apple posted the battery replacement p r o g r a m details on its website after the iPhone went on sale. 21. T h e battery replacement program information on Apple's w e b s i t e was located under several layers of links on the s u p p o r t page of Apple's website. 22. T h e battery replacement program will cost iPhone c o n s u m e r s nearly 20% of the purchase price of their phone a n n u a l l y , amounting to a de facto annual maintenance a n d / o r service charge. 23. T h e terms and costs of the battery replacement program, a n d the durability and life of the battery, were not d i s c l o s e d to Plaintiff and the class prior to their p u r c h a s e , and could not have been discovered by Plaintiff a n d the class where Apple and AT&T failed to disclose s a m e in advance of the iPhone launch date. 24. T h e Plaintiff and the class were required to sign a m i n i m u m two-year service plan with AT&T at the time of p u r c h a s e of the iPhone. C L A S S ALLEGATIONS 25. P u r s u a n t to Rule 23 of the Federal Rules of Civil P r o c e d u r e , Plaintiff brings this action on behalf of h i m s e l f and a class of similarly situated individuals. The class consists of all consumers, from 2007 to the 5  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 6 of 21 d a t e of judgment, throughout the United States, who p u r c h a s e d Defendants' iPhone. 26. U p o n information and belief, the Plaintiff class numbers i n at least the hundreds of thousands, if not millions, s u c h that joinder of all members is impracticable. 27. C o m m o n questions predominate over questions affecting i n d i v i d u a l members of the class. include: i. W h e t h e r Defendants committed a breach of Common questions t h e Illinois Consumer Fraud and Deceptive B u s i n e s s Practices Act, and all like and similar s t a t u t e s throughout the United States; ii. W h e t h e r Defendants purposefully omitted, misrepresented, and/or fraudulently concealed the d u r a b i l i t y of the iPhone battery, the terms and c o n d i t i o n s of its battery replacement program and " l o a n e r " program, and the cost of same, prior to p u r c h a s e by Plaintiff and the class. iii. W h e t h e r Defendants committed a breach of c o n t r a c t and/or breach of warranty to Plaintiff a n d the class. iv. W h e t h e r Defendants were unjustly enriched t o the detriment of Plaintiff and the Class. 28. P l a i n t i f f will fairly and adequately protect the interest o f the class; Plaintiff has retained counsel competent a n d experienced in class action litigation; and Plaintiff 6  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 7 of 21 h a s no interests antagonistic to those of the Plaintiff c l a s s members. 29. A class action is an appropriate method for fairly and e f f i c i e n t l y adjudicating this controversy because, among o t h e r things, joinder of all members of the class is i m p r a c t i c a b l e , and employing the class action device h e r e , in lieu of entertaining individual suits on the s a m e issue, would greatly serve judicial economy. C O U N T I: FRAUDULENT CONCEALMENT 1-29 P l a i n t i f f incorporates the allegations of ¶1-¶29 above o f this Complaint as if fully stated herein in this Count I. 30. D e f e n d a n t s concealed the following material facts from P l a i n t i f f and the class prior to their purchase of the iPhone: a. T h a t the iPhone battery is enclosed and soldered i n s i d e the iPhone, and cannot be changed by the owner b u t instead must be returned to Apple for service a n d / o r repair; b. T h a t the iPhone battery has a durability and/or l i f e t i m e of approximately 300 charges, necessitating f r e q u e n t and more than annual maintenance, repair, a n d / o r replacement if charged regularly on a daily basis; c. T h a t replacement, repair, and/or maintenance of the i P h o n e battery will cost Plaintiff and the class 7  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 8 of 21 a p p r o x i m a t e l y $85.95 under the Defendants' battery r e p l a c e m e n t program; d. T h a t the battery replacement program requires P l a i n t i f f and the class to be without their iPhone for a p p r o x i m a t e l y three days, and results in complete loss o f all stored data; e. T h a t Defendants will charge Plaintiff and the class $ 2 9 . 0 0 for use of an iPhone while their phone is being s e r v i c e d under the battery replacement program. f. T h a t annually, Plaintiff and the class will incur c o s t s of approximately 20% of the purchase price of t h e iPhone simply for maintenance, repair, and/or r e p l a c e m e n t of the iPhone battery. 31. T h e facts as alleged in ¶30(a)-(f) above, and the ninthi n n i n g disclosure by Defendants of same, were material in t h a t had Plaintiff and the class known the true nature of t h e iPhone and its actual expense they would not have p u r c h a s e d the iPhone from Defendants or conducted b u s i n e s s with Defendants. 32. D e f e n d a n t s require that Plaintiff and the class sign a t w o - y e a r service contract, all but ensuring that P l a i n t i f f and the class will be forced to pay for the i P h o n e battery replacement program at least once during t h e initial two year contract. 33. D e f e n d a n t had a duty to disclose the material facts, as a l l e g e d in ¶30(a)-(f) above, to Plaintiff and the Class 8  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 9 of 21 b e c a u s e Defendant was in a position of superior knowledge t o Plaintiff, in that Defendants knew of, and Plaintiff c o u l d never have known of, the fraudulent nature of D e f e n d a n t s ' misrepresentations, omissions, and statements. 34. A s a result of Defendants' fraudulent concealment of m a t e r i a l facts, such as those alleged in ¶30(a)-(f) a b o v e , Plaintiff and the class have and will suffer damages. C O U N T II: ILLINOIS CONSUMER FRAUD AND DECEPTIVE BUSINESS PRACTICES ACT 1-29 Plaintiff incorporates the allegations of ¶1-¶29 above o f this Complaint as if fully stated herein in this C o u n t II. 30. B y and through its advertisements, marketing, promotions, p a c k a g i n g , and manual, Defendants fraudulently m i s r e p r e s e n t e d , concealed, and or omitted material facts t o and from Plaintiff and the class, such as: a . T h a t the iPhone battery is enclosed and soldered i n s i d e the iPhone, and cannot be changed by the owner b u t instead must be returned to Apple for service a n d / o r repair; b . T h a t the iPhone battery has a durability and/or l i f e t i m e of approximately 300 charges, necessitating f r e q u e n t and more than annual maintenance, repair, 9  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 10 of 21 a n d / o r replacement if charged regularly on a daily basis; c . T h a t replacement, repair, and/or maintenance of the i P h o n e battery will cost Plaintiff and the class a p p r o x i m a t e l y $85.95 under the Defendants' battery r e p l a c e m e n t program; d . T h a t the battery replacement program requires P l a i n t i f f and the class to be without their iPhone for a p p r o x i m a t e l y three days, and results in complete loss o f all stored data; e . T h a t Defendants will charge Plaintiff and the class $ 2 9 . 0 0 for use of an iPhone while their phone is being s e r v i c e d under the battery replacement program. f . T h a t annually, Plaintiff and the class will incur c o s t s of approximately 20% of the purchase price of t h e iPhone simply for maintenance, repair, and/or r e p l a c e m e n t of the iPhone battery. 31. S u c h fraud was committed by Defendants in the course o f trade and commerce, as Plaintiff and the class were c o n s u m e r s of Defendants' product. 32. D e f e n d a n t s had knowledge of the following: a . T h a t the iPhone battery is enclosed and soldered i n s i d e the iPhone, and cannot be changed by the owner b u t instead must be returned to Apple for service a n d / o r repair; 10  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 11 of 21 b . T h a t the iPhone battery has a durability and/or l i f e t i m e of approximately 300 charges, necessitating f r e q u e n t and more than annual maintenance, repair, a n d / o r replacement if charged regularly on a daily basis; c . T h a t replacement, repair, and/or maintenance of the i P h o n e battery will cost Plaintiff and the class a p p r o x i m a t e l y $85.95 under the Defendants' battery r e p l a c e m e n t program; d . T h a t the battery replacement program requires P l a i n t i f f and the class to be without their iPhone for a p p r o x i m a t e l y three days, and results in complete loss o f all stored data; e . T h a t Defendants will charge Plaintiff and the class $ 2 9 . 0 0 for use of an iPhone while their phone is being s e r v i c e d under the battery replacement program. f . T h a t annually, Plaintiff and the class will incur c o s t s of approximately 20% of the purchase price of t h e iPhone simply for maintenance, repair, and/or r e p l a c e m e n t of the iPhone battery. 33. D e f e n d a n t s intended that its fraudulent statements, o m i s s i o n s , and/or concealments induce Plaintiff and t h e class to act so that Plaintiff and the class would p u r c h a s e Defendants' iPhone. 34. D e f e n d a n t s intended that their fraudulent statements, o m i s s i o n s , and/or concealments induce Plaintiff and 11  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 12 of 21 t h e class to act so that Plaintiff and the class would t h e n be forced to pay to Defendants approximately $ 8 5 . 9 5 for the battery replacement program, and $29.00 f o r use of a loaner iPhone, annually. 35. D e f e n d a n t s require Plaintiff and the class to sign a t w o - y e a r service contract, all but ensuring that P l a i n t i f f and the class will be forced to pay for the i P h o n e battery replacement program at least once d u r i n g the initial two year contract. 36. P l a i n t i f f and the class relied upon the truth of D e f e n d a n t s ' statements, believing all costs associated w i t h the iPhone to have been fully disclosed prior to p u r c h a s e of same. 37. D e f e n d a n t s ' aforementioned conduct is unfair, immoral, u n e t h i c a l , oppressive, and unscrupulous, in that D e f e n d a n t s concealed from Plaintiff and the class m e m b e r s those allegations in ¶¶30(a-f) and 32(a-f) a b o v e , as alleged herein. 38. A s a proximate result of Defendants' fraudulent s t a t e m e n t s , concealments, misrepresentations and/or o m i s s i o n s Plaintiff and the class have and will suffer d a m a g e s , because absent Defendants' fraud, the P l a i n t i f f and the class would have never purchased the i P h o n e from Defendants or transacted business with Defendants. C O U N T III: BREACH OF CONTRACT 12  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 13 of 21 1-29 Plaintiff incorporates the allegations of ¶1-¶29 above o f this Complaint as if fully stated herein in this Count III. 30. D e f e n d a n t s made an offer to sell to Plaintiff and the c l a s s a functional and complete iPhone with a battery i n exchange for its relative purchase price, which v a r i e s by model, store, etc. 31. P l a i n t i f f and the class accepted Defendants' offer by g o i n g to Defendants' stores and purchasing the iPhone. 32. D e f e n d a n t s breached their offer to sell to Plaintiff a n d the class a functional and complete iPhone with a b a t t e r y when Defendants failed to disclose to P l a i n t i f f and the class prior to their purchase that: a . T h a t the iPhone battery is enclosed and soldered i n s i d e the iPhone, and cannot be changed by the owner b u t instead must be returned to Apple for service a n d / o r repair; b . T h a t the iPhone battery has a durability and/or l i f e t i m e of approximately 300 charges, necessitating f r e q u e n t and more than annual maintenance, repair, a n d / o r replacement if charged regularly on a daily basis; c . T h a t replacement, repair, and/or maintenance of the i P h o n e battery will cost Plaintiff and the class a p p r o x i m a t e l y $85.95 under the Defendants' battery r e p l a c e m e n t program; 13  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 14 of 21 d . T h a t the battery replacement program requires P l a i n t i f f and the class to be without their iPhone for a p p r o x i m a t e l y three days, and results in complete loss o f all stored data; e . T h a t Defendants will charge Plaintiff and the class $ 2 9 . 0 0 for use of an iPhone while their phone is being s e r v i c e d under the battery replacement program. f . T h a t annually, Plaintiff and the class will incur c o s t s of approximately 20% of the purchase price of t h e iPhone simply for maintenance, repair, and/or r e p l a c e m e n t of the iPhone battery. g . D e f e n d a n t s require that Plaintiff and the class sign a t w o - y e a r service contract, all but ensuring that P l a i n t i f f and the class will be forced to pay for the i P h o n e battery replacement program at least once d u r i n g the initial two year contract. 33. P l a i n t i f f and the class have and will suffer damages a s a proximate result of Defendants' breach of contract. C O U N T IV: BREACH OF IMPLIED WARRANTIES 1-29 Plaintiff incorporates the allegations of ¶1-¶29 above o f this Complaint as if fully stated herein in this Count IV. 30. D e f e n d a n t s have committed a breach of implied warranty o f merchantability pursuant to 810 ILCS 5/2-314 and/or 14  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 15 of 21 i m p l i e d warranty of fitness for a particular purpose p u r s u a n t to 810 ILCS 5/2-315. 31. D e f e n d a n t s ' iPhone is a consumer good and Defendants a r e merchants within the meaning of 810 ILCS 5/2-314. 32. D e f e n d a n t s ' iPhone has been sold with the implied w a r r a n t y that they are fit for ordinary use and/or p a r t i c u l a r purposes for which cellular phones are u s e d , and that all costs associated with the use of s a m e are disclosed in advance of the purchase. 33. D e f e n d a n t s ' affirmations of fact as alleged herein f o r m e d the basis of the bargain between the parties. 34. D e f e n d a n t s ' iPhone is not reasonably fit for its o r d i n a r y use and/or particular purpose in that when P l a i n t i f f and the class purchased their iPhones they n e v e r contemplated the following: a . T h a t the iPhone battery is enclosed and soldered i n s i d e the iPhone, and cannot be changed by the owner b u t instead must be returned to Apple for service a n d / o r repair; b . T h a t the iPhone battery has a durability and/or l i f e t i m e of approximately 300 charges, necessitating f r e q u e n t and more than annual maintenance, repair, a n d / o r replacement if charged regularly on a daily basis; c . T h a t replacement, repair, and/or maintenance of the i P h o n e battery will cost Plaintiff and the class 15  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 16 of 21 a p p r o x i m a t e l y $85.95 under the Defendants' battery r e p l a c e m e n t program; d . T h a t the battery replacement program requires P l a i n t i f f and the class to be without their iPhone for a p p r o x i m a t e l y three days, and results in complete loss o f all stored data; e . T h a t Defendants will charge Plaintiff and the class $29.00 for use of an iPhone while their phone is b e i n g serviced under the battery replacement program. f . T h a t annually, Plaintiff and the class will incur c o s t s of approximately 20% of the purchase price of t h e iPhone simply for maintenance, repair, and/or r e p l a c e m e n t of the iPhone battery. 35. A consumer advocacy group, the Foundation for Consumer a n d Taxpayer Rights, said of consumers who purchased t h e iPhone from Defendants that "[s]ome of them might b e waking up now wondering who they got in bed with", c a l l i n g the "hidden disclosure that's going to cost t h e user as much as 20 percent of the purchase price [ a n n u a l l y ] ... a colossal mistake." 36. D e f e n d a n t s require that Plaintiff and the class sign a t w o - y e a r service contract, all but ensuring that P l a i n t i f f and the class will be forced to pay for the i P h o n e battery replacement program at least once d u r i n g the initial two year contract. 16  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 17 of 21 37. A s a proximate result of Defendants' breach of implied w a r r a n t y , Plaintiff and the class have and will suffer damages. C O U N T V: UNJUST ENRICHMENT 1-29 Plaintiff incorporates the allegations of ¶1-¶29 above o f this Complaint as if fully stated herein in this Count V. 30. T h i s Count V for unjust enrichment is plead in the a l t e r n a t i v e to Plaintiff's and the class' claim for b r e a c h of contract. 31. D e f e n d a n t s , to the detriment of the Plaintiff and the C l a s s , have benefited and been unjustly enriched by t h e i r conduct where they have sold and continue to sell t h e i r iPhone while misrepresenting, omitting, and/or c o n c e a l i n g from Plaintiff and the class prior to purchase: a . T h a t the iPhone battery is enclosed and soldered i n s i d e the iPhone, and cannot be changed by the owner b u t instead must be returned to Apple for service a n d / o r repair; b . T h a t the iPhone battery has a durability and/or l i f e t i m e of approximately 300 charges, necessitating f r e q u e n t and more than annual maintenance, repair, a n d / o r replacement if charged regularly on a daily basis; c . T h a t replacement, repair, and/or maintenance of the i P h o n e battery will cost Plaintiff and the class 17  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 18 of 21 a p p r o x i m a t e l y $85.95 under the Defendants' battery r e p l a c e m e n t program; d . T h a t the battery replacement program requires P l a i n t i f f and the class to be without their iPhone for a p p r o x i m a t e l y three days, and results in complete loss o f all stored data; e . T h a t Defendants will charge Plaintiff and the class $ 2 9 . 0 0 for use of an iPhone while their phone is being s e r v i c e d under the battery replacement program. f . T h a t annually, Plaintiff and the class will incur c o s t s of approximately 20% of the purchase price of t h e iPhone simply for maintenance, repair, and/or r e p l a c e m e n t of the iPhone battery. g . T h a t it is all but guaranteed that Plaintiff and the c l a s s will be forced to pay for the iPhone battery r e p l a c e m e n t program at least once during the initial t w o year contract where Defendants require that P l a i n t i f f and the class sign a two-year service c o n t r a c t , and the battery is not manufactured to last t h a t long with regular and reasonable use. 32. D e f e n d a n t s had and have knowledge of these benefits, a n d have voluntarily accepted and retained these b e n e f i t s by intentionally and fraudulently concealing, o m i t t i n g , and/or misrepresenting the true capabilities a n d service fees associated with the iPhone battery p r i o r to purchase by Plaintiff and the class. 18  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 19 of 21 33. T h e circumstances described herein are such that it w o u l d be inequitable, unconscionable, unfair, u n l a w f u l , and unjust for Defendants to retain these i l l - g o t t e n benefits without paying the value thereof t o the Plaintiff and the class. 34. A s a result of Defendants' unjust enrichment, P l a i n t i f f and the class have and will suffer damages. C O U N T VI: ACCOUNTING 1-29 P l a i n t i f f incorporates the allegations of ¶1-¶29 above o f this Complaint as if fully stated herein in this C o u n t V. 30. P u r s u a n t to the above-described conduct and causes of a c t i o n , the circumstances or relationship between the p a r t i e s gives rise to a duty on the part of Defendants to a c c o u n t to Plaintiffs. 31. 32. N o other adequate remedy at law exists. T h e exact amount of income, revenue, and interest g e n e r a t e d and retained by Defendants from Plaintiff's and t h e class' purchase of the iPhone, and the income, r e v e n u e , and interest that has and will be generated by D e f e n d a n t s from Plaintiff's and the class' payment of f e e s under the Defendants' iPhone battery replacement p r o g r a m cannot be presently known because all books of a c c o u n t and records pertaining to same are in the p o s s e s s i o n of Defendants. 19  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 20 of 21 33. A c c o r d i n g l y , an accounting would permit Plaintiffs, the c l a s s , and the Court to ascertain the amounts due to P l a i n t i f f s and the class. 34. A n accounting should be conducted in equity under the s u p e r v i s i o n of this Court because it would involve i n t r i c a t e itemizations of income, prospective income, r e v e n u e and interest, prospective revenue and interest, a n d there is a need for discovery. P R A Y E R FOR RELIEF W H E R E F O R E , Plaintiff prays that this Honorable Court: A . C e r t i f y the class and appoint Plaintiff and Plaintiff's c o u n s e l to represent the Class; B . F i n d that Defendants committed a violation of the Illinois C o n s u m e r Fraud and Deceptive Business Practices Act, f r a u d u l e n t concealment, breach of contract, breach of i m p l i e d warranty, and were unjustly enriched; C . F i n d that Defendants should account for all revenues i m p r o p e r l y earned, as alleged herein; D . F i n d that Defendants pay actual, compensatory, and punitive d a m a g e s for their conduct as alleged herein; E . A w a r d reasonable attorneys' fees and costs; and F . G r a n t such other relief as this Court deems appropriate. 20  Case 1:07-cv-04946 Document 6 Filed 09/06/2007 Page 21 of 21 JOSE TRUJILLO, individually and on behalf of all others similarly situated, By: LARRY D. DRURY J A M E S ROWE L A R R Y D. DRURY, LTD. 2 0 5 WEST RANDOLPH, #1430 C H I C A G O , IL 60603 312/346-7950 A t t y . No. 22873 /s/ James Rowe 21