Friedman v. Apple, Inc. et al

Filing 15

MOTION for Change Venue by Apple, Inc.. (Attachments: # 1 Memo of Points and Authorities, # 2 Declaration D. House, # 3 Declaration S. Plunkett, # 4 Exhibit A, # 5 Exhibit B, # 6 Exhibit C, # 7 Exhibit D, # 8 Exhibit E, # 9 Exhibit F, # 10 Exhibit G, # 11 Exhibit H, # 12 Exhibit I, # 13 Exhibit J, # 14 Proof of Service)(Preovolos, Penelope). Modified on 3/7/2011 - Plunkett Declaration has s/ signature. Email sent to Atty to file Corrected Declaration of S. Plunkett. Removed duplicate text (jah).

EXHIBIT F
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PENELOPE A. PREOVOLOS (CA SBN 87607)
([e-mail])
ANDREW D. MUHLBACH (CA SBN 175694)
([e-mail])
STUART C. PLUNKETT (CA SBN 187971)
([e-mail])
HEATHER A. MOSER (CA SBN 212686)
([e-mail])
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
Attorneys for Defendant
APPLE INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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ADAM WEISBLATT, JOE HANNA, DAVID
TURK, and COLETTE OSETEK individually and
on behalf of all others similarly situated,
Plaintiffs,

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v.

Case Nos. 5:10-cv-02553 RMW,
5:10-cv-02588-RMW,
5:10-cv-04253-RMW
CLASS ACTION
ANSWER TO MASTER
CONSOLIDATED COMPLAINT

APPLE INC., AT&T MOBILITY LLC, and Does
1-10,

The Hon. Ronald M. Whyte

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Defendants.
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Master Consolidated Complaint filed:
December 10, 2010

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ANSWER TO MASTER CONSOLIDATED COMPLAINT
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Defendant APPLE INC. (“Apple”), by and through its attorneys, answers the Master

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Consolidated Complaint (“Complaint”) filed by Plaintiffs Adam Weisblatt, Joe Hanna, David

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Turk, and Collette Osetek as follows:

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NATURE OF THE ACTION
1.

Responding to paragraph 1 of the Complaint, Apple denies each and every

averment contained in paragraph 1.
2.

Responding to paragraph 2 of the Complaint, Apple denies each and every

averment contained in paragraph 2.
3.

Responding to paragraph 3 of the Complaint, Apple denies each and every

averment contained in paragraph 3.
4.

Responding to paragraph 4 of the Complaint, Apple denies each and every

averment contained in paragraph 4.
5.

Responding to paragraph 5 of the Complaint, Apple states that insofar as the

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averments in paragraph 5 state conclusions of law, no response thereto is required. Except as

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expressly stated, Apple denies each and every averment contained in paragraph 5.

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JURISDICTION AND VENUE
6.

Responding to paragraph 6 of the Complaint, Apple states that insofar as the

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averments in paragraph 6 state conclusions of law, no response thereto is required. Except as

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expressly stated, Apple denies each and every averment contained in paragraph 6.

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7.

Responding to paragraph 7 of the Complaint, Apple states that its executive offices

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and corporate headquarters are located in Cupertino, California. Apple further states that it is

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incorporated in California and that it is registered to do business in the State of California.

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Insofar as the averments in paragraph 7 state conclusions of law, no response thereto is required.

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8.

Responding to paragraph 8 of the Complaint, Apple states that it does business in

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the Northern District of California and that its headquarters are located in Santa Clara County,

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California. Insofar as the averments in paragraph 8 state conclusions of law, no response thereto

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is required.

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9.

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Responding to paragraph 9 of the Complaint, Apple states that its executive offices

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and corporate headquarters are located in Cupertino, California. Apple further states that it is

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incorporated in California and that it is registered to do business in the State of California. Apple

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further states that the to the extent that paragraph 9 references documents attached to the

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Complaint, the documents speak for themselves. Apple further states that to the extent that

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paragraph 9 references Apple’s website, the website speaks for itself. Apple further states it is

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without knowledge or information sufficient to form a belief as to the truth of the averments

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contained in paragraph 9. Insofar as the averments in paragraph 9 state conclusions of law, no

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response thereto is required. Except as expressly stated, Apple denies each and every averment

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contained in paragraph 9.
10.

Responding to paragraph 10 of the Complaint, Apple states that it does business in

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the Northern District of California and that its headquarters are located in Santa Clara County,

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California. Apple further states that assignment to the San Jose Division of the Northern District

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of California is appropriate. Insofar as the averments in paragraph 10 state conclusions of law, no

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response thereto is required.

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PARTIES
11.

Responding to paragraph 11 of the Complaint, Apple is without knowledge or

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information sufficient to form a belief as to the truth of the averments contained in paragraph 11

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and on that basis denies the averments.

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12.

Responding to paragraph 12 of the Complaint, Apple is without knowledge or

21

information sufficient to form a belief as to the truth of the averments contained in paragraph 12

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and on that basis denies the averments.

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13.

Responding to paragraph 13 of the Complaint, Apple is without knowledge or

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information sufficient to form a belief as to the truth of the averments contained in paragraph 13

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and on that basis denies the averments.

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14.

Responding to paragraph 14 of the Complaint, Apple is without knowledge or

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information sufficient to form a belief as to the truth of the averments contained in paragraph 14

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and on that basis denies the averments.
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15.

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Responding to paragraph 15 of the Complaint, Apple states that it is incorporated

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in California. Apple further states that its executive offices and corporate headquarters are

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located in Cupertino, Santa Clara County, California. Except as otherwise stated, Apple denies

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each and every averment contained in paragraph 15.

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16.

Responding to paragraph 16 of the Complaint, Apple states that its products and

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services include the Mac line of desktop and portable computers, iPhone, the iPod line of portable

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digital music and video players, Apple TV, Xserve, a portfolio of consumer and professional

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software applications, the Mac OS X operating system, third-party digital content and

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applications through the iTunes Store, and a variety of accessory, service and support offerings.

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Apple further states that it sells its products worldwide through its online stores, its retail stores,

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its direct sales force, and third-party wholesalers, retailers, and value-added resellers. Except as

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expressly stated, Apple denies each and every averment contained in paragraph 16.

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17.

Responding to paragraph 17 of the Complaint, Apple states that it is without

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knowledge or information to form a belief as to the truth of the averments contained in paragraph

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17 and on that basis denies the averments.

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18.

Responding to paragraph 18 of the Complaint, Apple states that it is without

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knowledge or information to form a belief as to the truth of the averments contained in paragraph

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18 and on that basis denies the averments.

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19.

Responding to paragraph 19 of the Complaint, Apple states that it is without

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knowledge or information to form a belief as to the truth of the averments contained in paragraph

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19 and on that basis denies the averments.

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20.

Responding to paragraph 20 of the Complaint, Apple states that AT&T provides

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wireless data support for iPad 3G. Except as expressly stated, Apple denies each and every

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averment contained in paragraph 20.

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21.

Responding to paragraph 21 of the Complaint, Apple is without knowledge or

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information to form a belief as to the truth of the averments contained in paragraph 21 and on that

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basis denies the averments.

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ALLEGATIONS APPLICABLE TO ALL COUNTS
22.

Responding to paragraph 22 of the Complaint, Apple states that its CEO, Steve

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Jobs, announced the iPad at a press event on January 27, 2010. Apple further states that it

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announced the iPad comes in two versions—one with Wi-Fi (“iPad Wi-Fi”) and the other with

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both Wi-Fi and 3G (“iPad 3G”). Except as expressly stated, Apple denies each and every

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averment contained in paragraph 22.

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23.

Responding to paragraph 23 of the Complaint, Apple states that the iPad is 0.5

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inches thick, 9.56 inches in height, and 7.47 inches in width and weighs approximately 1.5

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pounds. Apple further states that the iPad features a 9.7-inch, LED-backlit display with IPS

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technology. Apple further states that the iPad is powered by an Apple-designed A4 chip. Apple

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further states that iPad comes in two versions—one with Wi-Fi (“iPad Wi-Fi”) and the other with

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both Wi-Fi and 3G (“iPad 3G”). Apple further states that the suggested retail price for the iPad

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Wi-Fi is $499 for the 16 GB model, $599 for the 32 GB model, and $699 for the 64 GB model.

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Except as expressly stated, Apple denies each and every averment contained in paragraph 23.

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24.

Responding to paragraph 24 of the Complaint, Apple states that the iPad Wi-Fi

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went on sale in retail stores on April 3, 2010. Except as expressly stated, Apple denies each and

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every averment contained in paragraph 24.

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25.

Responding to paragraph 25 of the Complaint, Apple states that the iPad 3G went

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on sale in retail stores on April 30, 2010. Apple further states that the iPad Wi-Fi differs from the

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iPad 3G insofar as the iPad 3G is supported by AT&T’s network. Except as expressly stated,

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Apple denies each and every averment contained in paragraph 25.

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26.

Responding to paragraph 26 of the Complaint, Apple states that the suggested

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retail price for the iPad Wi-Fi is $499 for the 16 GB model, $599 for the 32 GB model, and $699

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for the 64 GB model. Apple further states that the suggested retail price for the iPad 3G is $629

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for the 16 GB model, $729 for the 32 GB model, and $829 for the 64 GB model. Apple further

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states that to the extent that paragraph 26 references documents attached to the Complaint, the

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documents speak for themselves. Except as expressly stated, Apple denies each and every

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averment contained in paragraph 26.
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27.

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Responding to paragraph 27 of the Complaint, Apple states that customers in the

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United States were able to pre-order iPad Wi-Fi or iPad 3G beginning on March 12, 2010. Apple

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further states that to the extent paragraph 27 references documents attached to the Complaint, the

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documents speak for themselves. Except as expressly stated, Apple denies each and every

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averment contained in paragraph 27.

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28.

Responding to paragraph 28 of the Complaint, Apple states that, as of May 31,

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2010, it had sold more than two million iPad Wi-Fi and iPad 3G units worldwide. Apple states

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that to the extent paragraph 28 references a website, the website speaks for itself. Except as

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expressly stated, Apple denies each and every averment contained in paragraph 28.

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29.

Responding to paragraph 29 of the Complaint, Apple states that the documents

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attached to the Complaint speak for themselves. Apple further states that to the extent paragraph

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29 references documents attached to the Complaint, the documents speak for themselves. Except

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as expressly stated, Apple denies each and every averment contained in paragraph 29.

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30.

Responding to paragraph 30 of the Complaint, Apple states that AT&T offers data

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service plans to support iPad 3G. Apple states that its CEO, Steve Jobs, announced the iPad on

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January 27, 2010. Apple further states that to the extent paragraph 30 references a video on a

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website, the video speaks for itself. Except as expressly stated, Apple denies each and every

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averment contained in paragraph 30.

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31.

Responding to paragraph 31 of the Complaint, Apple states that to the extent

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paragraph 31 references a website, the website speaks for itself. Except as expressly stated,

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Apple denies each and every averment contained in paragraph 31.

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32.

Responding to paragraph 32 of the Complaint, Apple states that to the extent

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paragraph 32 references websites, the websites speak for themselves. Except as expressly stated,

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Apple denies each and every averment contained in paragraph 32.

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33.

Responding to paragraph 33 of the Complaint, Apple denies each and every

averment contained in paragraph 33.
34.

Responding to paragraph 34 of the Complaint, Apple states that to the extent

paragraph 34 references documents attached to the Complaint, the documents speak for
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themselves. Except as expressly stated, Apple denies each and every averment contained in

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paragraph 34.

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(a)

Responding to paragraph 34(a) of the Complaint, Apple states that the document

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attached to the Complaint as Exhibit C speaks for itself. Except as expressly stated, Apple denies

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each and every averment contained in paragraph 34(a).

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(b)

Responding to paragraph 34(b) of the Complaint, Apple states that the document

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attached to the Complaint as Exhibit C speaks for itself. Except as expressly stated, Apple denies

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each and every averment contained in paragraph 34(b).

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(c)

Responding to paragraph 34(c) of the Complaint, Apple states that the document

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attached to the Complaint as Exhibit A speaks for itself. Except as expressly stated, Apple denies

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each and every averment contained in paragraph 34(c).

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(d)

Responding to paragraph 34(d) of the Complaint, Apple states that the document

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attached to the Complaint as Exhibit A speaks for itself. Except as expressly stated, Apple denies

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each and every averment contained in paragraph 34(d).

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(e)

Responding to paragraph 34(e) of the Complaint, Apple states that the document

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attached to the Complaint as Exhibit A speaks for itself. Except as expressly stated, Apple denies

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each and every averment contained in paragraph 34(e).

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35.

Responding to paragraph 35 of the Complaint, Apple states that to the extent

19

paragraph 35 references documents attached to the Complaint, the documents speak for

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themselves. Except as expressly stated, Apple denies each and every averment contained in

21

paragraph 35.

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36.

Responding to paragraph 36 of the Complaint, Apple states that to the extent that

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paragraph 36 references documents attached to the Complaint, the documents speak for

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themselves. Except as expressly stated, Apple denies each and every averment contained in

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paragraph 36.

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37.

Responding to paragraph 37 of the Complaint, Apple states that insofar as the

27

averments in paragraph 37 state conclusions of law, no response is thereto is required. Apple

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further states that it is without knowledge or information sufficient to form a belief as to the truth
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of the averments in paragraph 37, and on that basis denies such averments. Except as expressly

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stated, Apple denies each and every averment contained in paragraph 37.

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38.

Responding to paragraph 38 of the Complaint, Apple states that insofar as the

4

averments in paragraph 38 state conclusions of law, no response is thereto is required. Apple

5

further states that it is without knowledge or information sufficient to form a belief as to the truth

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of the averments of paragraph 38 at this time, and on that basis Apple denies each and every

7

averment contained in paragraph 38.

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9
10

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 is without knowledge or

11

information sufficient to form a belief as to the truth of the averments contained in paragraph 40,

12

and on that basis denies the averments.

13

conclusions of law, no response thereto is required. Except as expressly stated, Apple denies

14

each and every averment contained in paragraph 40.

15
16
17

41.

Insofar as the averments in paragraph 40 state

Responding to paragraph 41 of the Complaint, Apple denies each and every

averment contained in paragraph 41.
42.

Responding to paragraph 42 of the Complaint, Apple states that to the extent that

18

paragraph 42 references documents attached to the Complaint, the documents speak for

19

themselves. Apple further states that it without knowledge or information sufficient to form a

20

belief as to the truth of the averments contained in paragraph 42. Except as expressly stated,

21

Apple denies each and every averment contained in paragraph 42.

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43.

Responding to paragraph 43 of the Complaint, Apple states that to the extent that

23

paragraph 43 references documents attached to the Complaint, the documents speak for

24

themselves. Except as expressly stated, Apple denies each and every averment contained in

25

paragraph 43.

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44.

Responding to paragraph 44 of the Complaint, Apple is without knowledge or

27

information sufficient to form a belief as to the truth of the averments contained in paragraph 44

28

and on that basis denies the averments.
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45.

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Responding to paragraph 45 of the Complaint, Apple denies each and every

averment contained in paragraph 45.
46.

Responding to paragraph 46 of the Complaint, Apple denies each and every

averment contained in paragraph 46.
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 states that to the extent

8

paragraph 48 references a website, the website speaks for itself. Except as expressly stated,

9

Apple denies each and every averment contained in paragraph 48.

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49.

Responding to paragraph 49 of the Complaint, Apple states that to the extent that

11

paragraph 49 references documents attached to the Complaint, the documents speak for

12

themselves. Except as expressly stated, Apple denies each and every averment contained in

13

paragraph 49.

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50.

Responding to paragraph 50 of the Complaint, Apple states that to the extent

15

paragraph 50 references documents attached to the Complaint, the documents speak for

16

themselves. Except as expressly stated, Apple denies each and every averment contained in

17

paragraph 50.

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51.

Responding to paragraph 51 of the Complaint, Apple states that to the extent that

19

paragraph 51 references documents attached to the Complaint, the documents speak for

20

themselves. Except as expressly stated, Apple denies each and every averment contained in

21

paragraph 51.

22

52.

Responding to paragraph 52 of the Complaint, Apple denies each and every

23

averment contained in paragraph 52. Apple further denies that Plaintiffs or the members of the

24

purported class have been injured or damaged in any way or are entitled to relief of any kind.

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26

PLAINTIFF ADAM WEISBLATT
53.

Responding to paragraph 53 of the Complaint, Apple states that it is without

27

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

28

53 at this time, and on that basis denies each and every averment.
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54.

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Responding to paragraph 54 of the Complaint, Apple states that it is without

2

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

3

54 at this time, and on that basis denies each and every averment.

4

55.

Responding to paragraph 55 of the Complaint, Apple states that it is without

5

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

6

55 at this time, and on that basis denies each and every averment.

7

56.

Responding to paragraph 56 of the Complaint, Apple states that it is without

8

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

9

56 at this time, and on that basis denies each and every averment.

10

57.

Responding to paragraph 57 of the Complaint, Apple states that it is without

11

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

12

57 at this time, and on that basis denies each and every averment.

13

58.

Responding to paragraph 58 of the Complaint, Apple states that it is without

14

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

15

58 at this time, and on that basis denies each and every averment.

16

59.

Responding to paragraph 59 of the Complaint, Apple states that it is without

17

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

18

59 at this time, and on that basis denies each and every averment.

19

60.

Responding to paragraph 60 of the Complaint, Apple states that it is without

20

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

21

60 at this time, and on that basis denies each and every averment.

22
23

PLAINTIFF JOE HANNA
61.

Responding to paragraph 61 of the Complaint, Apple states that it is without

24

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

25

61 at this time, and on that basis denies each and every averment.

26

62.

Responding to paragraph 62 of the Complaint, Apple states that it is without

27

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

28

62 at this time, and on that basis denies each and every averment.
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63.

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Responding to paragraph 63 of the Complaint, Apple states that it is without

2

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

3

63 at this time, and on that basis denies each and every averment.

4

64.

Responding to paragraph 64 of the Complaint, Apple states that it is without

5

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

6

64 at this time, and on that basis denies each and every averment.

7

65.

Responding to paragraph 65 of the Complaint, Apple states that it is without

8

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

9

65 at this time, and on that basis denies each and every averment.

10

66.

Responding to paragraph 66 of the Complaint, Apple states that it is without

11

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

12

66 at this time, and on that basis denies each and every averment.

13

67.

Responding to paragraph 67 of the Complaint, Apple states that it is without

14

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

15

67 at this time, and on that basis denies each and every averment.

16
17

PLAINTIFF DAVID TURK
68.

Responding to paragraph 68 of the Complaint, Apple states that it is without

18

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

19

68 at this time, and on that basis denies each and every averment.

20

69.

Responding to paragraph 69 of the Complaint, Apple states that it is without

21

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

22

69 at this time, and on that basis denies each and every averment.

23

70.

Responding to paragraph 70 of the Complaint, Apple states that it is without

24

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

25

70 at this time, and on that basis denies each and every averment.

26

71.

Responding to paragraph 71 of the Complaint, Apple states that it is without

27

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

28

71 at this time, and on that basis denies each and every averment.
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72.

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Responding to paragraph 72 of the Complaint, Apple states that it is without

2

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

3

72 at this time, and on that basis denies each and every averment.

4

73.

Responding to paragraph 73 of the Complaint, Apple states that it is without

5

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

6

73 at this time, and on that basis denies each and every averment.

7

74.

Responding to paragraph 74 of the Complaint, Apple states that it is without

8

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

9

74 at this time, and on that basis denies each and every averment.

10

75.

Responding to paragraph 75 of the Complaint, Apple states that it is without

11

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

12

75 at this time, and on that basis denies each and every averment.

13

76.

Responding to paragraph 76 of the Complaint, Apple states that it is without

14

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

15

76 at this time, and on that basis denies each and every averment.

16

77.

Responding to paragraph 77 of the Complaint, Apple states that it is without

17

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

18

77 at this time, and on that basis denies each and every averment.

19
20

PLAINTIFF COLETTE OSETEK
78.

Responding to paragraph 78 of the Complaint, Apple states that it is without

21

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

22

78 at this time, and on that basis denies each and every averment.

23

79.

Responding to paragraph 79 of the Complaint, Apple states that it is without

24

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

25

79 at this time, and on that basis denies each and every averment.

26

80.

Responding to paragraph 80 of the Complaint, Apple states that it is without

27

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

28

80 at this time, and on that basis denies each and every averment.
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81.

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Responding to paragraph 81 of the Complaint, Apple states that it is without

2

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

3

81 at this time, and on that basis denies each and every averment.

4

82.

Responding to paragraph 82 of the Complaint, Apple states that it is without

5

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

6

82 at this time, and on that basis denies each and every averment.

7

83.

Responding to paragraph 83 of the Complaint, Apple states that it is without

8

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

9

83 at this time, and on that basis denies each and every averment.

10

84.

Responding to paragraph 84 of the Complaint, Apple states that it is without

11

knowledge or information sufficient to form a belief as to the truth of the averments of paragraph

12

84 at this time, and on that basis denies each and every averment.

13
14

CLASS ACTION ALLEGATIONS
85.

Responding to paragraph 85 of the Complaint, Apple states that Plaintiffs purport

15

to bring a class action against Apple and seek to represent a purported class as stated. Apple

16

denies that class treatment is appropriate.

17
18
19
20
21
22
23

86.

Responding to paragraph 86 of the Complaint, Apple states that Plaintiffs purport

to bring a class action against Apple. Apple denies that class treatment is appropriate.
87.

Responding to paragraph 87 of the Complaint, Apple states that Plaintiffs purport

to bring a class action against Apple. Apple denies that class treatment is appropriate.
88.

Responding to paragraph 88 of the Complaint, Apple denies each and every

averment contained in paragraph 88, including each individual sub-paragraph (a) – (l).
89.

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

24

averment contained in paragraph 89. Insofar as the averments in paragraph 89 state conclusions

25

of law, no response thereto is required.

26

90.

Responding to paragraph 90 of the Complaint, Apple states that Plaintiffs purport

27

to bring a class action against Apple. Apple denies that that class treatment is appropriate. Apple

28

further denies each and every averment contained in paragraph 90.
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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91.

Filed01/13/11 Page14 of 25

Responding to paragraph 91 of the Complaint, Apple states that Plaintiffs purport

2

to bring a class action against Apple. Apple denies that that class treatment is appropriate. Apple

3

further denies each and every averment contained in paragraph 91.

4

92.

Responding to paragraph 92 of the Complaint, Apple states that Plaintiffs purport

5

to bring a class action against Apple. Apple denies that class treatment is appropriate. Apple

6

further denies each and every averment contained in paragraph 92.

7

CAUSES OF ACTION

8

FIRST CAUSE OF ACTION
(Intentional Misrepresentation)

9
93.

Responding to paragraph 93 of the Complaint, Apple realleges and incorporates by

10
reference each and every preceding paragraph of this Answer as if fully set forth herein.
11
94.

Responding to paragraph 94 of the Complaint, Apple denies each and every

12
averment contained in paragraph 94.
13
95.

Responding to paragraph 95 of the Complaint, Apple denies each and every

14
averment contained in paragraph 95.
15
96.

Responding to paragraph 96 of the Complaint, Apple denies each and every

16
averment contained in paragraph 96.
17
97.

Responding to paragraph 97 of the Complaint, Apple denies each and every

18
averment contained in paragraph 97.
19
98.

Responding to paragraph 98 of the Complaint, Apple denies each and every

20
averment contained in paragraph 98.
21
99.

Responding to paragraph 99 of the Complaint, Apple denies each and every

22
averment contained in paragraph 99.
23
100.

Responding to paragraph 100 of the Complaint, Apple denies each and every

24
averment contained in paragraph 100.
25
101.

Responding to paragraph 101 of the Complaint, Apple denies each and every

26
averment contained in paragraph 101.
27
28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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2
3
4
5
6
7
8
9

102.

Filed01/13/11 Page15 of 25

Responding to paragraph 102 of the Complaint, Apple denies each and every

averment contained in paragraph 102.
103.

Responding to paragraph 103 of the Complaint, Apple denies each and every

averment contained in paragraph 103.
104.

Responding to paragraph 104 of the Complaint, Apple denies each and every

averment contained in paragraph 104.
105.

Responding to paragraph 105 of the Complaint, Apple denies each and every

averment contained in paragraph 105.
106.

Responding to paragraph 106 of the Complaint, Apple states that insofar as

10

Plaintiffs’ averments in paragraph 106 state conclusions of law, no response thereto is required.

11

Except as expressly stated, Apple denies each and every averment contained in paragraph 106.

12

Apple denies that Plaintiffs or the members of the purported class have been injured or damaged

13

in any way and further denies that Plaintiffs or the members of the purported class are entitled to

14

relief of any kind.

15

107.

Responding to paragraph 107 of the Complaint, Apple states that insofar as

16

Plaintiffs’ averments in paragraph 107 state conclusions of law, no response thereto is required.

17

Except as expressly stated, Apple denies each and every averment contained in paragraph 107.

18

Apple denies that Plaintiffs or the members of the purported class have been injured or damaged

19

in any way and further denies that Plaintiffs or the members of the purported class are entitled to

20

relief of any kind.

21

SECOND CAUSE OF ACTION
(False Promise/Fraud)

22
108.

Responding to paragraph 108 of the Complaint, Apple realleges and incorporates

23
by reference each and every preceding paragraph of this Answer as if fully set forth herein.
24
109.

Responding to paragraph 109 of the Complaint, Apple denies each and every

25
averment contained in paragraph 109.
26
110.

Responding to paragraph 110 of the Complaint, Apple denies each and every

27
averment contained in paragraph 110.
28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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Case5:10-cv-02553-RMW Document73

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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

111.

Filed01/13/11 Page16 of 25

Responding to paragraph 111 of the Complaint, Apple denies each and every

averment contained in paragraph 111.
112.

Responding to paragraph 112 of the Complaint, Apple denies each and every

averment contained in paragraph 112.
113.

Responding to paragraph 113 of the Complaint, Apple denies each and every

averment contained in paragraph 113.
114.

Responding to paragraph 114 of the Complaint, Apple denies each and every

averment contained in paragraph 114.
115.

Responding to paragraph 115 of the Complaint, Apple denies each and every

averment contained in paragraph 115.
116.

Responding to paragraph 116 of the Complaint, Apple denies each and every

averment contained in paragraph 116.
117.

Responding to paragraph 117 of the Complaint, Apple denies each and every

averment contained in paragraph 117.
118.

Responding to paragraph 118 of the Complaint, Apple denies each and every

averment contained in paragraph 118.
119.

Responding to paragraph 119 of the Complaint, Apple denies each and every

averment contained in paragraph 119.
120.

Responding to paragraph 120 of the Complaint, Apple denies each and every

20

averment contained in paragraph 120.

21

purported class have been injured or damaged in any way and further denies that Plaintiffs or the

22

members of the purported class are entitled to relief of any kind.

23

121.

Apple denies that Plaintiffs or the members of the

Responding to paragraph 121 of the Complaint, Apple states that insofar as

24

Plaintiffs’ averments in paragraph 121 state conclusions of law, no response thereto is required.

25

Except as expressly stated, Apple denies each and every averment contained in paragraph 121.

26

Apple denies that Plaintiffs or the members of the purported class have been injured or damaged

27

in any way and further denies that Plaintiffs or the members of the purported class are entitled to

28

relief of any kind.
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
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2
3
4
5
6
7
8
9
10
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12
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14
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16
17
18
19
20
21
22
23
24
25
26

Filed01/13/11 Page17 of 25

THIRD CAUSE OF ACTION
(Negligent Misrepresentation)
122.

Responding to paragraph 122 of the Complaint, Apple realleges and incorporates

by reference each and every preceding paragraph of this Answer as if fully set forth herein.
123.

Responding to paragraph 123 of the Complaint, Apple denies each and every

averment contained in paragraph 123.
124.

Responding to paragraph 124 of the Complaint, Apple denies each and every

averment contained in paragraph 124.
125.

Responding to paragraph 125 of the Complaint, Apple denies each and every

averment contained in paragraph 125.
126.

Responding to paragraph 126 of the Complaint, Apple denies each and every

averment contained in paragraph 126.
127.

Responding to paragraph 127 of the Complaint, Apple denies each and every

averment contained in paragraph 127.
128.

Responding to paragraph 128 of the Complaint, Apple denies each and every

averment contained in paragraph 128.
129.

Responding to paragraph 129 of the Complaint, Apple states that insofar as

Plaintiffs’ averments in paragraph 129 state conclusions of law, no response thereto is required.
Except as expressly stated, Apple denies each and every averment contained in paragraph 129.
130.

Responding to paragraph 130 of the Complaint, Apple denies each and every

averment contained in paragraph 130.
131.

Responding to paragraph 131 of the Complaint, Apple denies each and every

averment contained in paragraph 131.
132.

Responding to paragraph 132 of the Complaint, Apple denies each and every

averment contained in paragraph 132. Apple further denies that Plaintiffs or the members of the
purported class have been injured or damaged in any way and further denies that Plaintiffs or the
members of the purported class are entitled to relief of any kind.

27
28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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133.

Filed01/13/11 Page18 of 25

Responding to paragraph 133 of the Complaint, Apple denies each and every

2

averment contained in paragraph 133. Apple further denies that Plaintiffs or the members of the

3

purported class have been injured or damaged in any way and further denies that Plaintiffs or the

4

members of the purported class are entitled to relief of any kind.

5
6
7
8
9

FOURTH CAUSE OF ACTION
(Violation of Consumer Legal Remedies Act, Cal. Civ. Code §§ 1750, et seq.)
134.

Responding to paragraph 134 of the Complaint, Apple realleges and incorporates

by reference each and every preceding paragraph of this Answer as if fully set forth herein.
135.

Responding to paragraph 135 of the Complaint, Apple states that insofar as

10

Plaintiffs’ averments in paragraph 135 state conclusions of law, no response thereto is required.

11

Except as expressly stated, Apple denies each and every averment contained in paragraph 135.

12

136.

Responding to paragraph 136 of the Complaint, Apple states that insofar as

13

Plaintiffs’ averments in paragraph 136 state conclusions of law, no response thereto is required.

14

Except as expressly stated, Apple denies each and every averment contained in paragraph 136.

15

137.

Responding to paragraph 137 of the Complaint, Apple states that insofar as

16

Plaintiffs’ averments in paragraph 137 state conclusions of law, no response thereto is required.

17

Except as expressly stated, Apple denies each and every averment contained in paragraph 137.

18

138.

Responding to paragraph 138 of the Complaint, Apple states that insofar as

19

Plaintiffs’ averments in paragraph 138 state conclusions of law, no response thereto is required.

20

Except as expressly stated, Apple denies each and every averment contained in paragraph 138.

21

139.

Responding to paragraph 139 of the Complaint, Apple states that insofar as

22

Plaintiffs’ averments in paragraph 139 state conclusions of law, no response thereto is required.

23

Except as expressly stated, Apple denies each and every averment contained in paragraph 139.

24

140.

Responding to paragraph 140 of the Complaint, Apple states that insofar as

25

Plaintiffs’ averments in paragraph 140 state conclusions of law, no response thereto is required.

26

Except as expressly stated, Apple denies each and every averment contained in paragraph 140,

27

including each individual sub-paragraph (a) – (e).

28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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1

141.

Filed01/13/11 Page19 of 25

Responding to paragraph 141 of the Complaint, Apple states that insofar as

2

Plaintiffs’ averments in paragraph 141 state conclusions of law, no response thereto is required.

3

Except as expressly stated, Apple denies each and every averment contained in paragraph 141.

4

142.

Responding to paragraph 142 of the Complaint, Apple states that insofar as

5

Plaintiffs’ averments in paragraph 142 state conclusions of law, no response thereto is required.

6

Except as expressly stated, Apple denies each and every averment contained in paragraph 142.

7

143.

Responding to paragraph 143 of the Complaint, Apple states that insofar as

8

Plaintiffs’ averments in paragraph 143 state conclusions of law, no response thereto is required.

9

Except as expressly stated, Apple denies each and every averment contained in paragraph 143.

10

144.

Responding to paragraph 144 of the Complaint, Apple states that insofar as

11

Plaintiffs’ averments in paragraph 144 state conclusions of law, no response thereto is required.

12

Except as expressly stated, Apple denies each and every averment contained in paragraph 144.

13
14
15

145.

Responding to paragraph 145 of the Complaint, Apple denies each and every

averment contained in paragraph 145.
146.

Responding to paragraph 146 of the Complaint, Apple states that insofar as

16

Plaintiffs’ averments in paragraph 146 state conclusions of law, no response thereto is required.

17

Except as expressly stated, Apple denies each and every averment contained in paragraph 146.

18
19
20

147.

Responding to paragraph 147 of the Complaint, Apple denies each and every

averment contained in paragraph 147.
148.

Responding to paragraph 148 of the Complaint, Apple states that Plaintiffs seek

21

injunctive relief against Apple.

22

averment contained in paragraph 148.

23

purported class have been injured or damaged in any way and further denies that Plaintiffs or the

24

members of the purported class are entitled to relief of any kind.

25

149.

Except as expressly stated, Apple denies each and every
Apple denies that Plaintiffs or the members of the

Responding to paragraph 149 of the Complaint, Apple states that Plaintiffs seek

26

damages against Apple. Except as expressly stated, Apple denies each and every averment

27

contained in paragraph 149. Apple denies that Plaintiffs or the members of the purported class

28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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Case5:10-cv-02553-RMW Document73

Filed01/13/11 Page20 of 25

1

have been injured or damaged in any way and further denies that Plaintiffs or the members of the

2

purported class are entitled to relief of any kind.

3

150.

Responding to paragraph 150 of the Complaint, Apple states that insofar as

4

Plaintiffs’ averments in paragraph 150 state conclusions of law, no response thereto is required.

5

Apple further states that to the extent that paragraph 150 references documents attached to the

6

Complaint, the documents speak for themselves. Except as expressly stated, Apple denies each

7

and every averment contained in paragraph 150.

8

151.

Responding to paragraph 151 of the Complaint, Apple states that insofar as

9

Plaintiffs’ averments in paragraph 151 state conclusions of law, no response thereto is required.

10

Apple further states that it is without knowledge or information sufficient to form a belief as to

11

the truth of the averments of paragraph 151 at this time, and on that basis denies each and every

12

averment. Apple further denies that Plaintiffs or the members of the purported class have been

13

injured or damaged in any way and further denies that Plaintiffs or the members of the purported

14

class are entitled to relief of any kind.

15
16
17
18
19

FIFTH CAUSE OF ACTION
(Violation of Cal. Bus. & Prof. Code Section 17200, et seq.—Unlawful, Fraudulent, and
Unfair Business Acts and Practices)
152.

Responding to paragraph 152 of the Complaint, Apple realleges and incorporates

by reference each and every preceding paragraph of this Answer as if fully set forth herein.
153.

Responding to paragraph 153 of the Complaint, Apple states that insofar as

20

Plaintiffs’ averments in paragraph 153 state conclusions of law, no response thereto is required.

21

Except as expressly stated, Apple denies each and every averment contained in paragraph 153.

22

154.

Responding to paragraph 154 of the Complaint, Apple states that insofar as

23

Plaintiffs’ averments in paragraph 154 state conclusions of law, no response thereto is required.

24

Except as expressly stated, Apple denies each and every averment contained in paragraph 154.

25

155.

Responding to paragraph 155 of the Complaint, Apple states that insofar as

26

Plaintiffs’ averments in paragraph 155 state conclusions of law, no response thereto is required.

27

Except as expressly stated, Apple denies each and every averment contained in paragraph 155.

28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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1

156.

Filed01/13/11 Page21 of 25

Responding to paragraph 156 of the Complaint, Apple states that insofar as

2

Plaintiffs’ averments in paragraph 156 state conclusions of law, no response thereto is required.

3

Except as expressly stated, Apple denies each and every averment contained in paragraph 156.

4

157.

Responding to paragraph 157 of the Complaint, Apple states that insofar as

5

Plaintiffs’ averments in paragraph 157 state conclusions of law, no response thereto is required.

6

Except as expressly stated, Apple denies each and every averment contained in paragraph 157.

7

158.

Responding to paragraph 158 of the Complaint, Apple states that insofar as

8

Plaintiffs’ averments in paragraph 158 state conclusions of law, no response thereto is required.

9

Except as expressly stated, Apple denies each and every averment contained in paragraph 158.

10

159.

Responding to paragraph 159 of the Complaint, Apple states that insofar as

11

Plaintiffs’ averments in paragraph 159 state conclusions of law, no response thereto is required.

12

Except as expressly stated, Apple denies each and every averment contained in paragraph 159.

13

160.

Responding to paragraph 160 of the Complaint, Apple states that insofar as

14

Plaintiffs’ averments in paragraph 160 state conclusions of law, no response thereto is required.

15

Except as expressly stated, Apple denies each and every averment contained in paragraph 160.

16

161.

Responding to paragraph 161 of the Complaint, Apple denies each and every

17

averment contained in paragraph 161. Apple further denies that Plaintiffs or the members of the

18

purported class have been injured or damaged in any way and further denies that Plaintiffs or the

19

members of the purported class are entitled to relief of any kind.

20
21
22
23
24
25
26
27

SIXTH CAUSE OF ACTION
(Violation of Cal. Bus. & Prof. Code Section 17500, et seq.—False Advertising)
162.

Responding to paragraph 162 of the Complaint, Apple realleges and incorporates

by reference each and every preceding paragraph of this Answer as if fully set forth herein.
163.

Responding to paragraph 163 of the Complaint, Apple denies each and every

averment contained in paragraph 163.
164.

Responding to paragraph 164 of the Complaint, Apple denies each and every

averment contained in paragraph 164.

28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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1
2
3

165.

Filed01/13/11 Page22 of 25

Responding to paragraph 165 of the Complaint, Apple denies each and every

averment contained in paragraph 165.
166.

Responding to paragraph 166 of the Complaint, Apple states that insofar as

4

Plaintiffs’ averments in paragraph 166 state conclusions of law, no response thereto is required.

5

Except as expressly stated, Apple denies each and every averment contained in paragraph 166.

6
7
8
9
10
11

167.

Responding to paragraph 167 of the Complaint, Apple denies each and every

averment contained in paragraph 167.
168.

Responding to paragraph 168 of the Complaint, Apple states that insofar as

Plaintiffs’ averments in paragraph 168 state conclusions of law, no response thereto is required.
Except as expressly stated, Apple denies each and every averment contained in paragraph 168.
169.

Responding to paragraph 169 of the Complaint, Apple denies each and every

12

averment contained in paragraph 169. Apple further denies that Plaintiffs or the members of the

13

purported class have been injured or damaged in any way and further denies that Plaintiffs or the

14

members of the purported class are entitled to relief of any kind.

15

SEVENTH CAUSE OF ACTION
(Unjust Enrichment)

16
17
18
19
20
21
22
23
24
25

170.

Responding to paragraph 170 of the Complaint, Apple realleges and incorporates

by reference each and every preceding paragraph of this Answer as if fully set forth herein.
171.

Responding to paragraph 171 of the Complaint, Apple denies each and every

averment contained in paragraph 171.
172.

Responding to paragraph 172 of the Complaint, Apple denies each and every

averment contained in paragraph 172.
173.

Responding to paragraph 173 of the Complaint, Apple denies each and every

averment contained in paragraph 173.
174.

Responding to paragraph 174 of the Complaint, Apple states that insofar as

26

Plaintiffs’ averments in paragraph 174 state conclusions of law, no response thereto is required.

27

Except as expressly stated, Apple denies each and every averment contained in paragraph 174.

28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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175.

Filed01/13/11 Page23 of 25

Responding to paragraph 175 of the Complaint, Apple denies each and every

2

averment contained in paragraph 175. Apple further denies that Plaintiffs or the members of the

3

purported class have been injured or damaged in any way and further denies that Plaintiffs or the

4

members of the purported class are entitled to relief of any kind.

5

PRAYER FOR RELIEF

6

Apple denies that Plaintiffs’ purported class is certifiable or that Plaintiffs or the members

7

of the purported class suffered injury or damage, and further denies that Plaintiffs or the members

8

of the purported class are entitled to relief of any kind.

9
10

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

11
12

AFFIRMATIVE DEFENSES
As to affirmative defenses to the Complaint, Apple does not, by stating the matters set

13

forth in these defenses, allege or admit that it has the burden of proof and/or persuasion with

14

respect to any of these matters, and does not assume the burden of proof and/or persuasion as to

15

any matters as to which Plaintiffs have the burden of proof or persuasion.

16

FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)

17
18
19

1.

sufficient to constitute a cause, or causes, of action against Apple.

20

SECOND AFFIRMATIVE DEFENSE
(Lack of Standing)

21
22

The Complaint and each and every cause of action therein, fail to state facts

2.

The claims of the purported class are barred, in whole or in part, because members

23

of the purported class lack of standing to assert any or all of the causes of action alleged in the

24

Complaint.

25
26
27
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ANSWER TO MASTER CONSOLIDATED COMPLAINT
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THIRD AFFIRMATIVE DEFENSE
(Lack of Article III Standing)

2
3

3.

Apple alleges on information and belief that the claims of the purported class are

4

barred, in whole or in part, because members of the purported class lack standing under Article III

5

of the Constitution of the United States.

6

FOURTH AFFIRMATIVE DEFENSE
(Waiver)

7
8
9

4.

The Complaint, and each of its purported causes of action, is barred, in whole or in

part, by the doctrine of waiver.

10

FIFTH AFFIRMATIVE DEFENSE
(Failure to Mitigate)

11
12

5.

Plaintiffs and the purported class have failed to mitigate damages, if any.

13

SIXTH AFFIRMATIVE DEFENSE
(Constitutional)

14
15

6.

The claims of Plaintiffs and the purported class are in contravention of Apple’s

16

rights under applicable clauses of the United States and California Constitutions, including

17

without limitation the following provisions: (a) said claims constitute an impermissible burden

18

on interstate commerce in contravention of Article I, Section 8 of the United States Constitution;

19

(b) said claims violate Apple’s right to Due Process under the Fourteenth Amendment of the

20

United States Constitution; (c) said claims contravene the constitutional prohibition against vague

21

and overbroad laws; (d) such claims contravene freedom of speech rights under the California

22

Constitution and the First and Fourteenth Amendments of the United States Constitution; and (e)

23

such claims contravene the Due Process Clause of the California Constitution.

24
25
26
27

SEVENTH AFFIRMATIVE DEFENSE
(Improper Class Action)
7.

Plaintiffs’ claims, and those of the purported class, are barred because this action is

not properly maintainable as a class action as alleged by Plaintiffs, and Plaintiffs are not proper
class representatives.

28
ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
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2
3
4
5

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EIGHTH AFFIRMATIVE DEFENSE
(No Injury in Fact or Loss of Money or Property)
8.

Apple alleges on information and belief that Plaintiffs and the members of the

purported class have not sustained the required injury in fact and/or lost the requisite money or
property necessary to confer standing pursuant to Cal. Bus. & Prof. Code §§ 17200, et seq. and §§
17500, et seq.

6
NINTH AFFIRMATIVE DEFENSE
(No Injury or Damage)

7
8
9

9.

Apple denies that Plaintiffs or any member of the purported class have suffered

any injury or damage whatsoever, and further denies that it is liable to Plaintiffs or any member

10

of the purported class for any of the injury or damage claimed or for any injury or damage

11

whatsoever.

12

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

13
14
Dated: January 13, 2011
15
16

PENELOPE A. PREOVOLOS
ANDREW D. MUHLBACH
STUART C. PLUNKETT
HEATHER A. MOSER
MORRISON & FOERSTER LLP

17
18
By:
19
20

/s/ Stuart C. Plunkett
STUART C. PLUNKETT
Attorneys for Defendant
APPLE INC.

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25
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ANSWER TO MASTER CONSOLIDATED COMPLAINT
CASE NO. 5:10-cv-02553 RMW
sf-2939207

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