Gallion v. Apple, Inc

Filing 11

Apple's ANSWER to Complaint with Jury Demand byApple, Inc. (Preovolos, Penelope) (Filed on 6/7/2010)

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PENELOPE A. PREOVOLOS (CA SBN 87607) [e-mail] ANDREW DAVID MUHLBACH (CA SBN 175694) [e-mail] HEATHER A. MOSER (CA SBN 212686) [e-mail] SAMUEL J. BOONE LUNIER (CA SBN 252732) [e-mail] MORRISON & FOERSTER LLP 425 Market Street San Francisco, California 94105-2482 Telephone: [phone] Facsimile: 415.268.7522 Attorneys for Defendant APPLE INC. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION

CHARLENE GALLION, on behalf of herself and all others similarly situated, Plaintiff, v. APPLE INC., a California corporation, and DOES 1-100, inclusive, Defendants.

Case No.

CV 10-01610-RS

CLASS ACTION ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL Judge Richard Seeborg, Courtroom 3 Complaint Filed: April 15, 2010 Trial Date: None Set

Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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Defendant APPLE INC. ("Apple"), by and through its attorneys, answers the Complaint filed by Plaintiff Charlene Gallion as follows: PARTIES 1. Responding to paragraph 1 of the Complaint, Apple is without knowledge or

information sufficient to form a belief as to the truth of the averments contained in paragraph 1 and on that basis denies the averments. 2. Responding to paragraph 2 of the Complaint, Apple states that "Apple Inc." is

incorporated in California. Apple further states that its executive offices and corporate headquarters are located in Cupertino, Santa Clara County, California. Except as expressly stated, Apple denies each and every averment contained in paragraph 2 3. Responding to paragraph 3 of the Complaint, Apple is without knowledge or

information sufficient to form a belief as to the truth of the averments contained in paragraph 3 and on that basis denies the averments. 4. Responding to paragraph 4 of the Complaint, Apple is without knowledge or

information sufficient to form a belief as to the truth of the averments contained in paragraph 4 and on that basis denies the averments. JURISDICTION AND VENUE 5. Responding to paragraph 5 of the Complaint, Apple states that insofar as the

averments in paragraph 5 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 5. a. Responding to subparagraph 5(a) of the Complaint, Apple is without knowledge or information sufficient to form a belief as to the truth of the averments that the matter in controversy exceeds the jurisdictional amount or that the proposed class includes more than 100 members. Except as expressly stated, Apple denies each and every averment contained in paragraph 5(a). b. Responding to subparagraph 5(b) of the Complaint, Apple states that its executive offices and corporate headquarters are located in Cupertino, California. Apple further states that it is incorporated in California and that it is registered to do
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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business in the State of California. Apple further states that it has designed and sold Apple iPhone and Apple iPod touch products equipped with Liquid Contact Indicators and that such products include or are sold with warranties drafted and/or approved by Apple. Insofar as the averments in paragraph 5(b) state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 5(b). Responding to paragraph 6 of the Complaint, Apple states that it does business in

the Northern District of California and that its headquarters are located in Santa Clara County, California. Insofar as the averments in paragraph 6 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 6. GENERAL ALLEGATIONS Responding to paragraph 7 of the Complaint, Apple states that it designs and

markets a phone called the iPhone, and that it has sold the iPhone in the United States since approximately June 2007. Apple further states that it has sold subsequent versions of the iPhone referred to as the iPhone 3G and iPhone 3GS and such products have ranged in price from $99 to $499. Except as expressly stated, Apple denies each and every averment contained in paragraph 7. 8. Responding to paragraph 8 of the Complaint, Apple states that the iPhone is

configured so that U.S. customers must purchase cellular telephone service from AT&T Mobility LLC ("AT&T") in order to use the iPhone to make telephone calls. Apple is informed and believes that AT&T currently requires consumers to enter into a two-year contract with AT&T in order to use their iPhone to make telephone calls. Except as expressly stated, Apple denies each and every averment contained in paragraph 8. 9. Responding to paragraph 9 of the Complaint, Apple states that it designs, markets,

and sells a product known as the iPod touch. Apple further states that it sells the iPod touch in the United States. Apple further states that the iPod touch and the iPhone have similar nontelephonic features. Apple further states that it currently sells the iPod touch at prices ranging
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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from $199 to $399 depending on features and storage capacity. Except as expressly stated, Apple denies each and every averment contained in paragraph 9. The Standard Warranty and Extended Warranty 10. Responding to paragraph 10 of the Complaint, Apple states that to the extent

paragraph 10 is a reference to part of an Apple website, the website speaks for itself. Apple further states that it provides a one-year limited warranty with its iPhone and iPod touch products. Apple further states that the documents attached to the Complaint as Exhibit 1 appear to be copies of a version of the Limited Warranty. Apple further states that the documents speak for themselves. Insofar as the averments in paragraph 10 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 10. 11. Responding to paragraph 11 of the Complaint, Apple states that the documents

attached to the Complaint speak for themselves. Except as expressly stated, Apple denies each and every averment contained in paragraph 11. 12. Responding to paragraph 12 of the Complaint, Apple states that to the extent

paragraph 12 is a reference to part of an Apple website, the website speaks for itself. Apple further states that consumers who purchase an iPhone or iPod touch have the opportunity to purchase an AppleCare Protection Plan ("AppleCare") for those products. Apple further states that AppleCare for the iPhone currently costs $69.00 and that AppleCare for the iPod touch currently costs $59.00. Apple further states that the documents attached to the Complaint as Exhibit 2 appear to be copies of a version of the AppleCare Protection Plan. Apple further states that the documents speak for themselves. Insofar as the averments in paragraph 12 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 12. 13. Responding to paragraph 13 of the Complaint, Apple states that the documents

speak for themselves. Except as expressly stated, Apple denies each and every averment contained in paragraph 13.

Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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14.

Responding to paragraph 14 of the Complaint, Apple states that the documents

speak for themselves. Except as expressly stated, Apple denies each and every averment contained in paragraph 14. 15. Responding to paragraph 15 of the Complaint, Apple states that the document

attached to the Complaint as Exhibit 3 appears to be a page from Apple's website entitled "Apple, Inc., Repair Terms and Conditions." Apple further states that the document speaks for itself. Insofar as the averments in paragraph 15 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 15. The Liquid Submersion Indicators 16. Responding to paragraph 16 of the Complaint, Apple states that the document

attached to the Complaint as Exhibit 4 appears to be a page from Apple's website entitled "iPhone and iPod: Water damage is not covered by warranty" as it existed on September 10, 2009. Apple further states that the document speaks for itself. Except as expressly stated, Apple denies each and every averment contained in paragraph 16. 17. Responding to paragraph 17 of the Complaint, Apple states that the document

speaks for itself. Except as expressly stated, Apple denies each and every averment contained in paragraph 17. 18. Responding to paragraph 18 of the Complaint, Apple denies each and every

averment contained in paragraph 18. 19. Responding to paragraph 19 of the Complaint, Apple denies each and every

averment contained in paragraph 19. 20. Responding to paragraph 20 of the Complaint, Apple states that the document

attached to the Complaint as Exhibit 5 appears to be a page from Apple's website entitled "iPhone and iPod: Water damage is not covered by warranty" as it existed on December 22, 2009. Apple further states that the document speaks for itself. Except as expressly stated, Apple denies each and every averment contained in paragraph 20. 21. Responding to paragraph 21 of the Complaint, Apple denies each and every

averment contained in paragraph 21.
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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22.

Responding to paragraph 22 of the Complaint, Apple denies each and every

averment contained in paragraph 22. 23. Responding to paragraph 23 of the Complaint, Apple denies each and every

averment contained in paragraph 23. "Out of Warranty Service" 24. Responding to paragraph 24 of the Complaint, Apple states that in order to use an

iPhone's telephonic features, a customer must purchase cellular phone service from AT&T. Apple is informed and believes that AT&T currently requires consumers to enter into a two-year contract with AT&T in order to use their iPhone to make telephone calls. Apple is without knowledge or information sufficient to form a belief as to the truth of the averments concerning AT&T's termination fee practices and on that basis denies such averments. Except as expressly stated, Apple denies each and every averment contained in paragraph 24. 25. Responding to paragraph 25 of the Complaint, Apple states that iPhones that are

ineligible for warranty service, such as iPhones that have failed due to liquid damage, may be eligible for Out-Of-Warranty Service. Apple further states that if an iPhone is eligible for OutOf-Warranty Service, Apple will replace a customer's damaged iPhone with a new or refurbished iPhone for a fee that is currently $199. Except as expressly stated, Apple denies each and every averment contained in paragraph 25. 26. Responding to paragraph 26 of the Complaint, Apple states that customers who

elect to exchange their iPhone pursuant to Apple's Out-Of-Warranty Service are required to tender their damaged iPhone to Apple. Apple further states that the document attached to the Complaint as Exhibit 6 appears to be a page from Apple's website entitled "iPhone Service: Frequently Asked Questions" as of March 11, 2010. Apple further states that this document speaks for itself. Except as expressly stated, Apple denies each and every averment contained in paragraph 26. Plaintiff Gallion's Experience With Her Class Device 27. Responding to paragraph 27 of the Complaint, Apple denies that the experience

described by Plaintiff is "typical." Apple further states that it is without knowledge or
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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information sufficient to form a belief as to the truth of the remaining averments of paragraph 27 at this time, and on that basis denies each and every such averment. 28. Responding to paragraph 28 of the Complaint, Apple states that it is without

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 28 at this time, and on that basis denies each and every such averment. 29. Responding to paragraph 29 of the Complaint, Apple states that it is without

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 29 at this time, and on that basis denies each and every such averment. 30. Responding to paragraph 30 of the Complaint, Apple states that it is without

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 30 at this time, and on that basis denies each and every such averment. 31. Responding to paragraph 31 of the Complaint, Apple states that it is without

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 31 at this time, and on that basis denies each and every such averment. 32. Responding to paragraph 32 of the Complaint, Apple states that it is without

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 32 at this time, and on that basis denies each and every such averment. 33. Responding to paragraph 33 of the Complaint, Apple states that it is without

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 33 at this time, and on that basis denies each and every such averment. 34. Responding to paragraph 34 of the Complaint, Apple states that it is without

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 34 at this time, and on that basis denies each and every such averment. 35. Responding to paragraph 35 of the Complaint, Apple states that it is without

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph 35 at this time, and on that basis denies each and every such averment. 36. Responding to paragraph 36 of the Complaint, Apple denies each and every

averment contained in paragraph 36.
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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37.

Responding to paragraph 37 of the Complaint, Apple denies each and every

averment contained in paragraph 37. 38. Responding to paragraph 38 of the Complaint, Apple states that Plaintiff purports

to bring this action on behalf of an alleged class to obtain the relief sought in her prayer for relief. Apple denies that class treatment is appropriate. Apple denies that Plaintiff or the members of the purported class have been injured or damaged in any way and further denies that Plaintiff or the members of the purported class are entitled to relief of any kind. Except as expressly stated, Apple denies each and every averment contained in paragraph 38. STATUTES OF LIMITATION 39. Responding to paragraph 39 of the Complaint, Apple denies each and every

averment contained in paragraph 39. 40. Responding to paragraph 40 of the Complaint, Apple denies each and every

averment contained in paragraph 40. 41. Responding to paragraph 41 of the Complaint, Apple denies each and every

averment contained in paragraph 41. CHOICE OF LAW 42. Responding to paragraph 42 of the Complaint, Apple states that insofar as the

averments in paragraph 42 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 42. CLASS ALLEGATIONS 43. Responding to paragraph 43 of the Complaint, Apple states that Plaintiff purports

to bring a class action against Apple. Apple denies that class treatment is appropriate. 44. Responding to paragraph 44 of the Complaint, Apple states that Plaintiff purports

to bring a class action against Apple and seeks to represent a purported class as stated. Apple denies that class treatment is appropriate. 45. Responding to paragraph 45 of the Complaint, Apple states that Plaintiff purports

to bring a class action against Apple and seeks to represent a purported class as stated. Apple denies that class treatment is appropriate.
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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46.

Responding to paragraph 46 of the Complaint, Apple states that Plaintiff purports

to bring a class action against Apple and seeks to represent a purported class as stated. Apple denies that class treatment is appropriate. 47. Responding to paragraph 47 of the Complaint, Apple denies each and every

averment contained in paragraph 47. 48. Responding to paragraph 48 of the Complaint, Apple denies each and every

averment contained in paragraph 48. 49. Responding to paragraph 49 of the Complaint, Apple denies each and every

averment contained in paragraph 49. 50. Responding to paragraph 50 of the Complaint, Apple denies each and every

averment contained in paragraph 50. 51. Responding to paragraph 51 of the Complaint, Apple denies each and every

averment contained in paragraph 51. 52. Responding to paragraph 52 of the Complaint, Apple denies each and every

averment contained in paragraph 52. 53. Responding to paragraph 53 of the Complaint, Apple denies each and every

averment contained in paragraph 53. 54. Responding to paragraph 54 of the Complaint, Apple denies each and every

averment contained in paragraph 54. 55. Responding to paragraph 55 of the Complaint, Apple denies each and every

averment contained in paragraph 55. FIRST CLAIM FOR RELIEF (Declaratory Relief) 56. Responding to paragraph 56 of the Complaint, Apple realleges and incorporates by

reference each and every preceding paragraph of this Answer as if fully set forth herein. 57. Responding to paragraph 57 of the Complaint, Apple states that Plaintiff seeks a

declaration of the parties' rights and duties. Except as expressly stated, Apple denies each and every averment contained in paragraph 57.
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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58.

Responding to paragraph 58 of the Complaint, Apple denies each and every

averment contained in paragraph 58. 59. Responding to paragraph 59 of the Complaint, Apple denies each and every

averment contained in paragraph 59. 60. Responding to paragraph 60 of the Complaint, Apple denies each and every

averment contained in paragraph 60. SECOND CLAIM FOR RELIEF (Breach of Warranty) 61. Responding to paragraph 61 of the Complaint, Apple realleges and incorporates by

reference each and every preceding paragraph of this Answer as if fully set forth herein. 62. Responding to paragraph 62 of the Complaint, Apple states that the documents

attached to the Complaint speak for themselves. Apple further states that insofar as Plaintiff's averments in paragraph 62 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 62. 63. Responding to paragraph 63 of the Complaint, Apple states that it provides a one-

year limited warranty for iPhone and iPod touch devices it sells. Apple further states that an AppleCare Protection Plan is available for iPhone and iPod touch devices for an additional fee. Apple further states that insofar as Plaintiff's averments in paragraph 63 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 63. 64. Responding to paragraph 64 of the Complaint, Apple denies each and every

averment contained in paragraph 64. 65. Responding to paragraph 65 of the Complaint, Apple denies each and every

averment contained in paragraph 65. 66. Responding to paragraph 66 of the Complaint, Apple denies each and every

averment contained in paragraph 66. 67. Responding to paragraph 67 of the Complaint, Apple denies each and every

averment contained in paragraph 67.
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

THIRD CLAIM FOR RELIEF (Violation of the Song-Beverly Consumer Warranty Act) 68. Responding to paragraph 68 of the Complaint, Apple realleges and incorporates by

reference each and every preceding paragraph of this Answer as if fully set forth herein. 69. Responding to paragraph 69 of the Complaint, Apple states that insofar as

Plaintiff's averments in paragraph 69 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 69. 70. Responding to paragraph 70 of the Complaint, Apple states that insofar as

Plaintiff's averments in paragraph 70 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 70. 71. Responding to paragraph 71 of the Complaint, Apple states that insofar as

Plaintiff's averments in paragraph 71 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 71. 72. Responding to paragraph 72 of the Complaint, Apple denies each and every

averment contained in paragraph 72. 73. Responding to paragraph 73 of the Complaint, Apple denies each and every

averment contained in paragraph 73. FOURTH CLAIM FOR RELIEF (Fraud) 74. Responding to paragraph 74 of the Complaint, Apple realleges and incorporates by

reference each and every preceding paragraph of this Answer as if fully set forth herein. 75. Responding to paragraph 75 of the Complaint, Apple denies each and every

averment contained in paragraph 75. 76. Responding to paragraph 76 of the Complaint, Apple denies each and every

averment contained in paragraph 76. 77. Responding to paragraph 77 of the Complaint, Apple denies each and every

averment contained in paragraph 77.

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78.

Responding to paragraph 78 of the Complaint, Apple denies each and every

averment contained in paragraph 78. 79. Responding to paragraph 79 of the Complaint, Apple denies each and every

averment contained in paragraph 79. 80. Responding to paragraph 80 of the Complaint, Apple denies each and every

averment contained in paragraph 80. 81. Responding to paragraph 81 of the Complaint, Apple denies each and every

averment contained in paragraph 81. 82. Responding to paragraph 82 of the Complaint, Apple denies each and every

averment contained in paragraph 82. FIFTH CLAIM FOR RELIEF (Unfair and Deceptive Act and Practices in Violation of the Consumer Legal Remedies Act) 83. Responding to paragraph 83 of the Complaint, Apple realleges and incorporates by

reference each and every preceding paragraph of this Answer as if fully set forth herein. 84. Responding to paragraph 84 of the Complaint, Apple states that insofar as the

averments in paragraph 84 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 84. 85. Responding to paragraph 85 of the Complaint, Apple states that insofar as

Plaintiff's averments in paragraph 85 state conclusions of law, no response thereto is required. Except as expressly stated, Apple denies each and every averment contained in paragraph 85. 86. Responding to paragraph 86 of the Complaint, Apple denies each and every

averment contained in paragraph 86. 87. Responding to paragraph 87 of the Complaint, Apple denies each and every

averment contained in paragraph 87. 88. Responding to paragraph 88 of the Complaint, Apple denies each and every

averment contained in paragraph 88

Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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89.

Responding to paragraph 89 of the Complaint, Apple denies each and every

averment contained in paragraph 89. 90. Responding to paragraph 90 of the Complaint, Apple denies each and every

averment contained in paragraph 90. 91. Responding to paragraph 91 of the Complaint, Apple denies each and every

averment contained in paragraph 91. 92. Responding to paragraph 92 of the Complaint, Apple states that Plaintiff seeks

injunctive relief against Apple. Except as expressly stated, Apple denies each and every averment contained in paragraph 92. Apple denies that Plaintiff or the members of the purported class have been injured or damaged in any way and further denies that Plaintiff or the members of the purported class are entitled to relief of any kind. 93. Responding to paragraph 93 of the Complaint, Apple states that Plaintiff seeks an

order as stated. Except as expressly stated, Apple denies each and every averment contained in paragraph 93. Apple denies that Plaintiff or the members of the purported class have been injured or damaged in any way and further denies that Plaintiff or the members of the purported class are entitled to relief of any kind. SIXTH CLAIM FOR RELIEF (Unfair, Fraudulent, and Unfair Business Practices in Violation of the Unfair Competition Law) 94. Responding to paragraph 94 of the Complaint, Apple realleges and incorporates by

reference each and every preceding paragraph of this Answer as if fully set forth herein. 95. Responding to paragraph 95 of the Complaint, Apple denies each and every

averment contained in paragraph 95. 96. Responding to paragraph 96 of the Complaint, Apple denies each and every

averment contained in paragraph 96. 97. Responding to paragraph 97 of the Complaint, Apple states that Plaintiff seeks

injunctive and other relief as stated. Except as expressly stated, Apple denies each and every averment contained in paragraph 97. Apple denies that Plaintiff or the members of the purported
Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

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class have been injured or damaged in any way and further denies that Plaintiff or the members of the purported class are entitled to relief of any kind. SEVENTH CLAIM FOR RELIEF (Unjust Enrichment) 98. Responding to paragraph 98 of the Complaint, Apple realleges and incorporates by

reference each and every preceding paragraph of this Answer as if fully set forth herein. 99. Responding to paragraph 99 of the Complaint, Apple denies each and every

averment contained in paragraph 99. 100. Responding to paragraph 100 of the Complaint, Apple denies each and every

averment contained in paragraph 100. 101. Responding to paragraph 101 of the Complaint, Apple states that Plaintiff seeks an

order as stated. Except as expressly stated, Apple denies each and every averment contained in paragraph 101. Apple denies that Plaintiff or the members of the purported class have been injured or damaged in any way and further denies that Plaintiff or the members of the purported class are entitled to relief of any kind. PRAYER FOR RELIEF Apple denies that Plaintiff's purported class is certifiable or that Plaintiff or the members of the purported class suffered injury or damage, and further denies that Plaintiff or the members of the purported class are entitled to relief of any kind. AFFIRMATIVE DEFENSES As to affirmative defenses to the Complaint, Apple does not, by stating the matters set forth in these defenses, allege or admit that it has the burden of proof and/or persuasion with respect to any of these matters, and does not assume the burden of proof or persuasion as to any matters as to which Plaintiff has the burden of proof or persuasion. FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) 1. The Complaint, and each and every cause of action therein, fails to state facts

sufficient to constitute a cause, or causes, of action against Apple.
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Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

SECOND AFFIRMATIVE DEFENSE (Lack of Standing) 2. The claims of the purported class are barred, in whole or in part, because members

of the purported class lack standing to assert any or all of the causes of action alleged in the Complaint. THIRD AFFIRMATIVE DEFENSE (Lack of Article III Standing) 3. Apple alleges on information and belief that members of the purported class lack

standing under Article III of the Constitution of the United States. FOURTH AFFIRMATIVE DEFENSE (Waiver) 4. The Complaint, and each of its purported causes of action, is barred, in whole or in

part, by the doctrine of waiver. FIFTH AFFIRMATIVE DEFENSE (Accord and Satisfaction) 5. Plaintiff's claims, and those of the purported class, are barred, in whole or in part,

to the extent that Plaintiff and members of the purported class have released, settled, entered into an accord and satisfaction of, or otherwise compromised their claims. SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate) 6. Plaintiff and the purported class have failed to mitigate their damages, if any. SEVENTH AFFIRMATIVE DEFENSE (Comparative Fault) 7. Plaintiff's claims, and those of the purported class, are barred, in whole or in part,

by their own comparative fault.

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Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

EIGHTH AFFIRMATIVE DEFENSE (Contributory Negligence) 8. Any and all events, happenings, injuries and damages set forth in the Complaint

were proximately caused and contributed to by the acts and/or omissions of Plaintiff and/or members of the purported class, and such acts and/or omissions totally bar or reduce any recovery on the party of Plaintiff and/or the purported class. NINTH AFFIRMATIVE DEFENSE (Constitutional) 9. The claims of Plaintiff and the purported class are in contravention of Apple's

rights under applicable clauses of the United States and California Constitutions, including without limitation the following provisions: (a) said claims constitute an impermissible burden on interstate commerce in contravention of Article I, Section 8 of the United States Constitution; (b) said claims violate Apple's right to Due Process under the Fourteenth Amendment of the United States Constitution; (c) said claims contravene the constitutional prohibition against vague and overbroad laws; (d) such claims contravene freedom of speech rights under the California Constitution and the First and Fourteenth Amendments to the United States Constitution; and (e) said claims contravene the Due Process Clause of the California Constitution. TENTH AFFIRMATIVE DEFENSE (Bona Fide Error) 10. The claims of Plaintiffs and the purported class are barred because, although Apple

denies each and every claim of Plaintiffs and the purported class and denies that Apple engaged in wrongdoing or error of any kind, any alleged error on Apple's part was a bona fide error notwithstanding Apple's use of reasonable procedures adopted to avoid any such error.

Apple reserves the right to assert other defenses as discovery progresses.

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Answer of Defendant Apple Inc. CV 10-01610-RS sf-2834302

PRAYER WHEREFORE, Apple prays for judgment as follows: 1. That Plaintiff and the purported class take nothing by way of the Complaint; 2. That the Complaint be dismissed with prejudice and judgment be entered in favor of Apple; 3. That Apple be awarded its costs of suit; and 4. For such other and further relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL Apple hereby demands a trial by jury on all issues upon which trial by jury may be had.

Dated: June 7, 2010

PENELOPE A. PREOVOLOS ANDREW DAVID MUHLBACH HEATHER A. MOSER SAMUEL J. BOONE LUNIER MORRISON & FOERSTER LLP

By:

/s/ Penelope A. Preovolos PENELOPE A. PREOVOLOS Attorneys for Defendant APPLE INC.

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