Boswell v. Apple, Inc.

Filing 1

COMPLAINT against Apple, Inc.. Filing fee $ 350.00 receipt number 113C-3810579, filed by Nicolette Boswell. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s), # 3 Exhibit Receipt of purchase)(Smith, Brian)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA

1
2
3
4
5
6

NICOLETTE BOSWELL, individually Case No.
and on behalf of all others similarly
situated,
Plaintiff,

7
8

CLASS ACTION COMPLAINT

vs.

9

1. Violations of 18 U.S.C. §§ 1030,
et seq.

10
11
12
13
14
15

2. Violation of Florida’s Deceptive
and Unfair Trade Practices Act,
APPLE, INC., a California corporation;
Fla. Stat. § 501.201, et seq.
and DOES 1 through 10, inclusive,
3. Unjust Enrichment
Defendants.
4. Negligent Misrepresentation
5. Intentional Misrepresentation

16
17
18

DEMAND FOR JURY TRIAL

19
20
21
22
23

Plaintiff, NICOLETTE BOSWELL

(“Plaintiff”), individually and on

24

behalf of all others similarly situated United States residents, brings this complaint

25

against Defendants, APPLE, INC., a California corporation; and DOES 1 through

26

10, inclusive, (collectively “Defendants” or “Apple”), and alleges as follows:

27
28
_________________________________________________________

CLASS ACTION COMPLAINT

VENUE AND JURISDICTION

1
2

1.

This Court has jurisdiction over the subject matter presented by this

3

Complaint because it is a class action arising under the Class Action Fairness Act

4

of 2005 (“CAFA”), Pub. L. No. 109-2, 119 Stat. 4 (2005), which explicitly

5

provides for the jurisdiction of the Federal Courts over any class action in which

6

any member of the Plaintiff class is a citizen of a state different from any

7

Defendant, and in which the matter in controversy exceeds in the aggregate the

8

sum of $5,000,000.00, exclusive of interest and costs. Plaintiff seeks to represent

9

a national class, and more than 2/3 of the members of the putative class are

10

citizens of different states than Apple. Plaintiff alleges that the total claims of the

11
12
13

individual members of the Plaintiff Class in this action are in excess of
$5,000,000.00 in the aggregate, exclusive of interest and costs, as required by 28
U.S.C. § 1332(d)(2), (5).

14

2.

Defendant is a citizen of Florida. More than 2/3 of the putative Class

15
16
17
18

are citizens of states other than Florida. Therefore, diversity of citizenship exists
under CAFA as required by 28 U.S.C. § 1332(d)(2)(A).
3.

Venue in this judicial district is proper pursuant to 28 U.S.C.

19

§1391(a) because Defendant conducts and transacts substantial business in, and

20

may be found in, this District, and Plaintiff purchased the subject product of this

21

action in this District.
PARTIES

22
23

4.

Plaintiff NICOLETTE BOSWELL (“Plaintiff”), are adult individuals

24

and residents of this District. At all times relevant herein, Plaintiff has resided in
25
26
27
28

Palm Beach County, Florida and have been a citizen of this State. Plaintiff
Nicolette Boswell purchased an Apple iPhone 4 on February 27, 2011, evidenced
by the receipt attached hereto and incorporated herein as EXHIBIT 1. The covert
_________________________________________________________

CLASS ACTION COMPLAINT

1

surveillance and subsequent recording of Plaintiff’s movements was done without

2

her knowledge or consent and was not disclosed in any way by Defendant APPLE,

3

INC. The Apple iPhone 4 was one of the devices using the iOS4 operating

4

system. Plaintiff relied on Apple Inc.’s statements and omissions with regard to

5

protecting her privacy. Plaintiff has legitimate privacy and security interests in

6

her locations and reasonably believed this information would not be tracked by

7

Apple Inc., let alone maintained in an unencrypted format.

8

5.

Defendant APPLE, INC. is a California corporation. Apple, Inc.

9

conducts substantial business throughout Florida, this District, and throughout the

10

entire United States by advertising and through the extensive use of distribution

11
12
13

channels that delver and sell the goods and services to consumers.
6.

Plaintiff also names Does 1–10 as Defendants in this action, whose

names and roles in this controversy have not presently been ascertained. At all

14

times relevant herein, these Doe Defendants, along with APPLE, INC. and its
15
16
17
18
19

employees, subsidiaries, affiliates, and other related entities, were the agents,
servants, and employees of each, and at all times relevant herein, each was acting
within the purpose and scope of that agency, service, and employment.
7.

Whenever reference in this Complaint is made to any act or

20

transaction of the Defendant, such allegation shall also include the principals,

21

officers, directors, employees, agents, and/or representatives of Defendant who

22

committed, knew of, performed, authorized, ratified and/or directed such acts or

23

transactions on behalf of Defendant while actively engaged in the scope of their

24

duties.

25
26
27

GENERAL ALLEGATIONS
8.

Apple iPhones and 3G iPads secretly record and store details of all

their owners’ movements. Plaintiff is informed and believes and thereby alleges

28
_________________________________________________________

CLASS ACTION COMPLAINT

1

that the location date is hidden from users but stored in an unencrypted format,

2

making it easy for Apple or third parties to later access.

3

9.

This action arises out of Apple’s failure to inform their customers and

4

users of the iPhone and 3G iPad that their movements were being tracked and

5

recorded.

6

10.

7
8

Apple’s pattern of conduct in tracking consumers’ location and

subsequently storing the data was intentional.
11.

All iPhones log, record and store users’ locations based on latitude

9

and longitude alongside a timestamp. The iPhones store this information in a file

10

called “consolidated.db” or something similar. Apple intentionally began

11
12
13

recording this information with the release of its iOS 4 operating system in June
2010. Apple uses a cell-tower triangulation to obtain user location, thereby
recording user movements.

Alternatively, Apple may use global positioning

14

system (GPS) data to obtain user location.
15
16
17

12.

Apple devices download the user location data to the user’s computer

when the mobile device synchronizes (“syncs”) or shares data with the computer.

18

The data is unencrypted on the mobile devices and also on users’ computers that

19

sync with those mobile devices.

20

13.

Apple’s terms of Service (available at http://www.apple.com

21

/legal/itunes/uk/terms.html) do not disclose its comprehensive tracking of users.

22

Plaintiff and other users did not provide any sort of informed consent to the

23

tracking at issue in this case.

24

14.

Apple’s omission of its uniform location tracking policies, practices

25

and procedures was material, as a reasonable consumer has a privacy interest in

26

his or her location and would find it important that a company was compiling each

27
28
_________________________________________________________

CLASS ACTION COMPLAINT

1

location he or she visited in an unencrypted format. Apple collects the location

2

information covertly, surreptitiously and in violation of law.

3

15.

Plaintiff and Class members had no reasonable basis to believe every

4

physical location they visited with their iPhone or iPad would be monitored by

5

Apple and stored in an unencrypted format.

6

16.

Apple tracks users’ locations on its own, separate, apart and in

7

addition to the information it collects in conjunction with other businesses that

8

develop applications for Apple’s devices.

9

applications. It is about Apple’s collection of their customers’ location

10
11
12
13

This action is not about the

information.
17.

Apple’s iPhones and iPad 3Gs (collectively, the “Products”) were

created to keep consumers “connected” at all times, and are thus carried by
consumers to essentially every location they travel to, making the information

14

collected by Apple highly personal, and valuable; indeed, in many instances it
15
16
17

may be information to which employers and family members are not privy.
18.

That information about places frequently visited by a consumer are

18

stored unencrypted, and the accessibility of the unencrypted information collected

19

by Apple places consumers, including Plaintiff and the Class, at serious risk of

20

privacy invasions, including crimes such as theft and stalking.

21

19.

Plaintiff and proposed Class members were harmed by Apple’s

22

accrual of personal location, movement and travel histories because their personal

23

computers were used in ways they did not approve, and because they were

24

personally tracked just as if by a tracking device for which a court-ordered warrant

25

would ordinarily be required.

26
27

20.

Plaintiff brings this action to stop Apple’s illegal and intrusive

scheme of collecting personal location information.

28
_________________________________________________________

CLASS ACTION COMPLAINT

1

21.

Plaintiff seeks an injunction requiring Apple to disable such tracking

2

in its next-released operating system for the relevant devices, which include at

3

least iPhones running iOS 4 operating systems and 3G iPads.

4
5
6

22.

Plaintiff and Class Members also seek damages for violation of

statutory and common law privacy rights.
23.

As a direct and proximate result of Defendants’ conduct, Plaintiff and

7

the Class have suffered and/or will suffer irreparable and irreversible damage. As

8

such, Plaintiff, on behalf of the Class, seeks injunctive relief, compensatory and

9

punitive damages, statutory penalties and restitution for statutory and common law

10
11
12
13

violations of Florida law.
24.

An injunction that would, among other things, require Apple to

reconfigure its software so that users' personal location information is not
collected, synced to other computers, nor stored in an unencrypted format, is

14

required to protect Plaintiff’s and the Class’ privacy rights for the following
15
16
17

reasons:
a. Apple knew or should have known that ordinary consumers acting

18

reasonably would not understand the Apple privacy policy to include

19

the location tracking and synchronizing at issue in this case.

20

b. Irreparable injury has resulted and continues to result from Apple's

21

unauthorized tracking of millions of Americans. Once Plaintiff and

22

the Class began carrying their Apple Products, Apple began tracking

23

their locations. This has happened in the past and continues to happen

24

all across the United States. It is unconscionable to allow Apple to

25

continue unlawfully and without proper consent tracking Plaintiff and

26

proposed Class members. If Apple wanted to track the whereabouts

27

of each of its products' users, it should have obtained specific,

28
_________________________________________________________

CLASS ACTION COMPLAINT

1

particularized informed consent such that Apple consumers across

2

America would not have been shocked and alarmed to learn of

3

Apple's practices in recent days.

4

c. No adequate remedy at law exists because users of Apple products

5

have no way to prevent Apple from collecting this information

6

because even if users disable the iPhone and iPad GPS components,

7

Apple's tracking system remains fully functional.

8

d. Balance of the hardships favors Plaintiff and the Class because it is

9

easier for Apple to stop unlawfully tracking the every move of

10

Americans than it is for individual consumers to circumvent Apple's

11

sophisticated tracking programs. To require that Plaintiff and the

12

Class bear the consequences of Apple's deceptive privacy policy and

13

unlawful acquisition of personal location information would be

14

inequitable.
15

e. The public has an important privacy interest their locations. Without

16

an injunction, the unencrypted tracking information being synced

17
18

with computers and networked to the internet are unsecured. The

19

public interest would not be disserved, and indeed would be

20

advanced, by entering an injunction against Defendant.

21
22

25.

Plaintiff also seeks an order that Defendant was unjustly enriched as

23

a result of the conduct described herein, and that such funds be disgorged.

24

Because of Apple's omissions and concealment, Plaintiff and Class members

25

conveyed a benefit to Apple by purchasing its products, maintaining and

26

purchasing its service and then being tracked everywhere they subsequently

27

traveled. Apple appreciated the benefit conferred by Plaintiff in this transaction

28
_________________________________________________________

CLASS ACTION COMPLAINT

1

because it was enriched in the amount Plaintiff paid for the iPhone and iPad and

2

the monthly service. Plaintiff is entitled to have a refund of the amounts that she

3

paid for the iPhone, iPad 3G and monthly service charges due to the fraudulent

4

conduct of Defendants in an amount according to proof.
CLASS ALLEGATIONS

5
6

26.

The Plaintiff brings this action on behalf of herself and the proposed

7

plaintiff Class members under Rules 23(b)(2) and (3) of the Federal Rules of Civil
8
9

Procedure. The proposed Class consists of:
All persons in the United States who purchased or owned an iPhone

10
11

with the iOS 4 operating system or a 3G iPad between the release of those

12

products for sale by Apple and the present. Excluded from the Class are

13

those who purchased the products for resale; members of the federal

14

judiciary and their relatives; and Defendant's officers, directors and

15

employees.

16

27.

While the exact number of Class members is unknown to the Plaintiff

17

at this time, Plaintiff is informed and believes and based upon such information

18

and belief alleges that there are millions of members of the proposed Class.

19

Approximately 59 million people now have an iPhone, and many of those run the

20

iOS 4 operating system at issue in this case, and about 10 million people have

21

purchased an iPad, many of those the 3G version at issue here. The Class is so

22
23

numerous that joinder of all members of the Class is impracticable.
28.

This action involves questions of fact common to all Class members

24

because all Class members purchased, own or use iPhones or iPads under uniform
25
26

Apple privacy policies.

27
28
_________________________________________________________

CLASS ACTION COMPLAINT

1
2

29.
because:

a. The Computer Fraud and Abuse Act, violated here, is national in

3

scope and applies to all prospective Class members; and

4

b. Apple's privacy invasions have violated Plaintiff’s and Class

5

members' common law rights in uniform ways.

6
7

This action involves question of law common to all Class members

30.

Plaintiff’s claims are typical of those of other members of the Class

8

as there are no material differences in the facts and law underlying the claims of

9

Plaintiff and the Class and by prosecuting her claims Plaintiff will advance the

10
11
12
13

claims of Class members.

Plaintiff has retained counsel competent and

experienced in the prosecution of this type of litigation.
31.

The common questions of law and fact among all Class members

predominate over any issues affecting individual members of the Class, including

14

but not limited to:
15
16
17
18
19
20
21
22
23
24
25
26

a. whether Apple obtained and stored Plaintiff’ location information;
b. whether Apple failed to disclose material terms in its privacy policy
regarding its collection of users' location information;
c. whether Apple intends to market or otherwise exploit users' location
information;
d. whether the alleged conduct constitutes violations of the laws
asserted herein;
e. whether Plaintiff and Class members are entitled to declaratory and
injunctive relief;
f. whether Plaintiff and Class members have sustained monetary loss
and the proper measure of that loss;

27
28
_________________________________________________________

CLASS ACTION COMPLAINT

g. whether Plaintiff and Class members have sustained consequential

1

loss, and to what measure; and

2

h. whether Apple's acts and omissions warrant punitive damages.

3
4

32.

Class treatment of the claims set forth herein is superior to other

5

available methods for the fair and efficient adjudication of this controversy. The

6

expense and burden of individual litigation would make it impracticable or

7

impossible for proposed Class members to prosecute their claims individually.

8

Absent a class action, a multiplicity of individual lawsuits would be required to

9

address the claims between Class members and Apple, and inconsistent treatment

10
11
12
13

and adjudication of the claims would likely result.
33.

The litigation and trial of Plaintiff’s claims is manageable. Apple's

standardized "Terms and Conditions" at issue, Apple's uniform deployment of
operating systems that track each user in identical ways, the consistent provisions

14

of the relevant laws, and the readily ascertainable identities of many Class
15
16
17
18

members demonstrate that there would be no significant manageability problems
with prosecuting this lawsuit as a class action.
34.

Apple has acted or refused to act on grounds that apply generally to

19

the Class so that final injunctive relief and corresponding declaratory relief are

20

appropriate.

21

35.

Unless a class-wide injunction is issued, Apple will continue to

22

commit the violations alleged, and the members of the Class will continue to be

23

tracked, unlawfully surveyed, and potentially endangered.

24

36.

Apple has acted and refused to act on grounds generally applicable to

25

the Class, making appropriate final injunctive relief with respect to the Class as a

26

whole.

27
28
_________________________________________________________

CLASS ACTION COMPLAINT

37.

1
2

Apple's acts and omissions are the direct and proximate cause of

damage as described in the following Causes of Action:
FIRST CAUSE OF ACTION
VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT
18 U.S.C. §§ 1030, ET SEQ.
(Plaintiff and Class Members Against All Defendants)

3
4
5
6

38.

7
8
9
10

Plaintiff re-alleges and incorporates by reference the allegations

contained in the paragraphs above, and those that come after as if fully set forth
here.
39.

By secretly installing software that records users' every moves Apple

11

has accessed Plaintiff’s computer and iPhone, in the course of interstate commerce

12

or communication, in excess of the authorization provided by Plaintiff as

13

described in the Computer Fraud and Abuse Act (the "Fraud Act") 18 U.S.C. §

14

1030(a)(2)(C).

15
16
17

40.

Plaintiff’s iPhones and iPads, and those of the Class, are protected

computers pursuant to 18 U.S.C. section 1030(e)(2)(B).
41.

Apple further violated the Fraud Act by causing the transmission of a

18

program, information, code or command - both in deploying the iOS 4 operating

19

systems, and also as a result of the syncing of user handheld devices with their

20
21

laptop or desktop computers - and as a result caused harm aggregating at least
$5,000,000 in value.

22

42.

Apple's actions were knowing or reckless and, as described above,

23
24
25
26

caused harm to Plaintiff and proposed Class members.
43.

Plaintiff seeks recovery for this loss, as well as injunctive and

declaratory relief to prevent future harm.

27
28
_________________________________________________________

CLASS ACTION COMPLAINT

SECOND CAUSE OF ACTION
FOR VIOLATIONS OF FLORIDA’S DECEPTIVE
AND UNFAIR TRADE PRACTICES ACT,
FLA. STAT. § 501.201, ET SEQ.
(By Plaintiff, the Class against All Defendants, Including Does 1-100,
inclusive)

1
2
3
4
5

44.

6
7

Plaintiff repeats and re-alleges the allegations set forth above, and

incorporate the same as if set forth herein at length.
45.

8

This cause of action is brought pursuant to the Florida Deceptive and

9

Unfair Trade Practices Act, inter alia, sections 501.201 to 201.213, Florida

10

Statutes. The express purpose if the Act is to “protect the consuming public...from

11

those who engage in unfair methods of competition, or unconscionable, deceptive,

12

or unfair acts or practices in the conduct of any trade or commerce.”

13

501.202(2).

14

46.

§

Defendants violated Florida’s Deceptive and Unfair Trade Practices

15

Act§ 501.201, et seq. (“FDUTPA”) and similar laws of other States by engaging

16

in unfair methods of competition, unconscionable acts and practices, and unfair

17

and deceptive acts and practices in the conduct of its business.

18

47.

Plaintiff is a “consumer” as defined by the Florida Deceptive and

19

Unfair Trade Practices Act.
20

48.

Apple’s iPhone and/or iPad is a “good” within the meaning of the Act

21
22

and Apple is engaged in trade or commerce within the meaning of the Act.
49.

23

Plaintiffs’ subject purchase in this cause was a “consumer

24

transaction” within the scope of the Florida Deceptive and Unfair Trade Practices

25

Act.

26
27
28
_________________________________________________________

CLASS ACTION COMPLAINT

1

50.

Apple’s unfair and deceptive practices are likely to mislead – and

2

have misled – the consumer acting reasonably under the circumstances and,

3

therefore, violate Section 500.04, Florida Statutes.

4

51.

Defendants’ covert use of the unlawful tracking device concealed in

5

its products constitutes deceptive and unfair trade practices.

6

intentionally failed to disclose to Plaintiff and Class members that the iPhone 4

7

and 3G iPad would track and record their every movement and location.

8

52.

Defendants

Apple knew its privacy terms and conditions policy was, and

9

continues to be, false, deceptive and untrue. Plaintiff and Class members had no

10

reason to believe their whereabouts would be monitored by Apple and stored in an

11
12
13

unencrypted format.
53.

Had Plaintiff and Class members known that Defendants’ products

would track and record their movements in unencrypted format, they would not

14

have purchased the products from Defendants.
15
16
17

54.

As a direct and proximate result of Defendants’ violations of

FDUTPA, Plaintiff and the Class have suffered injury in fact and loss of money or

18

property and suffered economic and non-economic damages as described above in

19

detail and prayed for below.

20

55.

The damages suffered by the Plaintiff and the Class were directly and

21

proximately caused by the deceptive, misleading and unfair practices of Apple, as

22

described above.

23

56.

Therefore, as a direct and proximate result of Defendants’ violations

24

of FDUTPA, Plaintiff and the Class have suffered injury in fact and loss of money

25

or property and suffered economic and non-economic damages as described above

26

in detail and prayed for below.

27
28
_________________________________________________________

CLASS ACTION COMPLAINT

1

57.

Pursuant to FLA. STAT. § 501.211(1), Plaintiffs and the Class seek a

2

declaratory judgment and court order enjoining the above described wrongful acts

3

and practices of the Defendant and for restitution and disgorgement.

4

58.

Additionally, pursuant to Section 501.211(2) and Section 501.2105,

5

Plaintiffs and the Class make claims for damages, punitive damages, attorney’s

6

fees and costs.
THIRD CAUSE OF ACTION:
UNJUST ENRICHMENT
(By Plaintiff and the Class as against all Defendants)

7
8
9
10
11
12
13
14

59.

Plaintiff re-alleges and incorporates by reference the allegations

contained in the paragraphs above as if fully set forth herein.
60.

Plaintiff and the Class members conferred a benefit on Defendants by

purchasing the iPhone 4 and 3G iPads (“the Products”).
61.

Defendants’ omissions and concealment of its intent to use the

15

products to track Plaintiff’s movements induced Plaintiff to confer said benefit on

16

Defendants.

17
18

62.

Defendants have profited from unlawful, unfair, misleading, and

deceptive practices and advertising at the expense of Plaintiff and Class members,

19

under circumstances in which it would be unjust for Apple to be permitted to
20

retain the benefit.
21
22
23

63.

Specifically, (1) Defendants have complied private information of

Plaintiff’ whereabouts in unencrypted format without Plaintiff’s informed consent

24

and (2) Plaintiff would not have purchased Defendants’ Products had they been

25

fully aware of the ramifications of their transaction.

26
27
28
_________________________________________________________

CLASS ACTION COMPLAINT

64.

1

Plaintiff and Class members do not have an adequate remedy at law

2

against Defendants. Even if users disable the iPhone and iPad GPS components,

3

Apple's tracking system remains fully functional.
65.

4

Plaintiff and Class members are entitled to restitution of the excess

5

amount paid for the Apple iPhone, over and above what they would have paid if

6

Defendants had disclosed the use of its unlawful tracking device.
66.

7
8

not less than the purchase price of the Apple iPhone.

9
10

Plaintiff and Class members are entitled to restitution in an amount

67.

Plaintiff and Class members are also entitled to disgorgement of the

profits Defendants derived from the sale of the Apple iPhone.

11
12
13

68.

FOURTH CAUSE OF ACTION:
NEGLIGENT MISREPRESENTATION
(By Plaintiff and the Class as against all Defendants)
Plaintiff re-alleges and incorporates by reference the allegations

14

contained in the paragraphs above, and those that come after as if fully set forth
15
16
17

here.
69.

At all times since 2009 in advertising for and soliciting customers,

18

Apple omitted a material fact—that purchasers would be tracked at all times

19

during its sale of iPhones and iPad 3Gs to consumers and that records of the

20

tracking would be maintained and may be maintained indefinitely.

21

70.

Apple was negligent in making the omission because it should have

22

known that whether their every movement would be tracked, recorded, and stored

23

for later use was material to consumers.

24
25
26
27

71.

In making that omission, Apple intended or expected that Plaintiff

and Class members would rely on the omission.
72.

Plaintiff and the Class justifiably relied on Apple's omissions about

its tracking of purchasers, and would not have purchased Apple's products but for

28
_________________________________________________________

CLASS ACTION COMPLAINT

1

the omission. Plaintiff and the Class were damaged in amounts equal to the price

2

they paid for Apple products and their monthly service charges.
73.

3

Apple's omissions were material and directly and proximately caused

4

ordinary consumers acting reasonably, Plaintiff and Class members included, to

5

buy the iPhone and iPad products. Without Apple's omissions of its covert

6

intentions, Plaintiff would not have purchased the products and suffered damages.

7

FIFTH CAUSE OF ACTION:
INTENTIONAL MISREPRESENTATION
(By Plaintiff and the Class as against all Defendants)

8
9

74.

10

Plaintiff re-alleges and incorporates by reference the allegations

11

contained in the paragraphs above, and those that come after as if fully set forth

12

here.

13

75.

Apple represented to Plaintiff and Class members that it would not

14

collect information about their every movement and location, and omitted

15

disclosing this to Plaintiff and the Class.

16
17
18

76.

Apple knew its privacy terms and conditions policy was, and

continues to be, false, deceptive and untrue. Apple omitted the fact that Apple will
track users, and intended for Plaintiff and Class members to rely on its deceptive

19

statements.
20

77.

Plaintiff and Class members had no reason to believe their physical

21
22
23
24

locations could or would be monitored by Apple and stored in an unencrypted
format.
78.

Apple’s omission of its location tracking policies, practices and

25

procedures was material, as a reasonable consumer has a privacy interest in his or

26

her location and would find it important that a company was recording each

27

location he or she visited and storing them in an unencrypted format.

28
_________________________________________________________

CLASS ACTION COMPLAINT

1
2
3

79.

Apple's fraud is comprised of both the illegal tracking of its users and

the concealment of such activity from its consumers.
80.

Plaintiff and Class members, acting as ordinary consumers,

4

reasonably relied on Apple's representations. Plaintiff had a right to rely on

5

Apple's representations. Plaintiff’s and Class members' reliance on Apple's

6

omissions was a substantial factor in causing their harm. Plaintiff and Class

7

members were damaged in the amount of money required to purchase Apple's

8

products and the monthly service charges on their accounts.

9
10
11
12
13

81.

Apple had and continues to have a duty of good faith, which

implicitly includes a duty not to deceive consumers, and also not to conduct this
sort of covert digital surveillance on consumers. Undoubtedly, Apple has a duty to
refrain from stalking consumers. That, however, is exactly what Apple has done
and continues to do. Apple has collected and maintained the location history of

14

Plaintiff and the Class, in an unprotected format in conscious disregard of the
15
16
17

rights, including privacy rights, of the Plaintiff and Class Members.
82.

To remedy Apple's intentional omission to consumers, and omission

18

of clarifying statements during the sales process, Plaintiff and Class members seek

19

to rescind the contracts, and thereby disgorge all monies paid to Apple for these

20

products.

21

83.

22

Plaintiff and the Class seek and are entitled to punitive damages from

Apple pursuant to this cause of action.
PRAYER FOR RELIEF

23
24

WHEREFORE, Plaintiff, individually and on behalf of all others similarly

25

situated, prays for relief pursuant to each cause of action set forth in this

26

Complaint as follows:

27
28
_________________________________________________________

CLASS ACTION COMPLAINT

1

1.

For an order certifying that the action may be maintained as a class

2

action, certifying Plaintiff as representative of the Class, and designating their

3

counsel as counsel for the Class;

4

2.

For an award of equitable relief as follows:
(a)

5

Enjoining Defendants from making any claims for the goods
and services found to violate Florida law as set forth above;

6

(b)

7

Requiring Defendants to make full restitution of all monies

8

wrongfully obtained as a result of the conduct described in this

9

Complaint;

10

(c)

11

Requiring Defendants to disgorge all ill-gotten gains flowing
from the conduct described in this Complaint;

12

(d)

13

Requiring Defendants to immediately cease its wrongful
conduct;

14

(e)

Enjoining Defendants’ unfair, unlawful and fraudulent

15

conduct;

16

(f)

17

Requiring Defendants to engage in a corrective notice
campaign;

18

(g)

19

Requiring Defendants to refund to Plaintiff and all members of
the Class the funds paid to Defendants for the Products;

20
21

3.

For an award of attorney’s fees and costs;

22

4.

For an award of damages to be determined at trial;

23

5.

For an award of statutory damages to be determined at trial;

24

6.

For an award of punitive damages to be determined at trial;

25

7.

For pre- and post-judgment interest on any amounts awarded; and

26

8.

For any other legal and equitable relief as this Court may deem just

27

and proper.

28
_________________________________________________________

CLASS ACTION COMPLAINT

DEMAND FOR JURY TRIAL

1
2

Plaintiff demands a trial by jury on all issues so triable.

3
4
5
6
7
8
9
10
11
12

DATED: June 2, 2011

Respectfully submitted,
/s/ Brian W. Smith
Brian W. Smith, Esq.
Florida Bar No.: 0470510
SMITH & VANTURE, LLP
1615 Forum Place, Suite 4C
West Palm Beach, FL 33401
[e-mail]
Phone: [phone]
Fax: [phone]

18

Howard W. Rubinstein, Esq.
Fla. Bar No.: 104108
THE LAW OFFICES OF
HOWARD W. RUBINSTEIN
PO Box 4839
Aspen, CO, 81612
[e-mail]
Phone: [phone]
Fax: [phone]

19

Trial Attorneys for Plaintiff

13
14
15
16
17

20
21
22
23
24
25
26
27
28
_________________________________________________________

CLASS ACTION COMPLAINT