Minkler v. Apple Inc

Filing 1

COMPLAINT against Apple, Inc., No process. Jury demand ( Filing fee $ 400, receipt number 0971-8165810). Filed by Nancy Catherine Minkler. (Attachments: # 1 Civil Cover Sheet)(Lynn, Joseph) (Filed on 11/15/2013) Modified text on 11/18/2013 (dhmS, COURT STAFF).

GREGORY D. WOLFLICK (SBN 108699)
WOLFLICK & SIMPSON
130 North Brand Blvd., Suite 410
Glendale, California 91203
818.243.8300
818.243.0122 - Facsimile
DONALD W. STEWART (Pro Hac Vice application pending)
STEWART & STEWART, P.C.
P.O. Box 2274
Anniston, Alabama 36202
[phone]
[phone] – Facsimile
J. PAUL LYNN (Pro Hac Vice application pending)
STEWART & STEWART, P.C.
1826 3rd Avenue North, Suite 300
Bessemer, AL 35020
[phone]
[phone] - Facsimile
Counsel for Plaintiffs
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
____________________________________
NANCY ROMINE MINKLER,
)
JURY DEMAND
Individually and on Behalf of All
)
Others Similarly Situated,
) 1. Unfair Competition, California Business
)
and Professions Code § 17200, et seq.
Plaintiffs
)
) 2. Violations of False and Misleading
v.
)
Advertising Law, California Business and
)
Professions Code § 17500, et seq.
)
APPLE, INC.,
) 3. Violations of the Consumer Legal Remedies
)
Act, California Civil Code § 1750, et seq.
)
Defendant.
) 4. Breach of Express Warranty
)
) 5. Breach of Implied Warranty
)
) 6. Violation of the Magnuson-Moss Warranty Act
)
___________________________________ ) 7. Negligent Misrepresentation
1

CLASS ACTION COMPLAINT
TABLE OF CONTENTS
Page
I. INTRODUCTION .................................................................................................................... 3
II. JURISDICTION AND VENUE ............................................................................................... 5
III. THE PARTIES........................................................................................................................ 6
A. Plaintiff ........................................................................................................................ 6
B. Defendant Apple, Inc. ..................................................................................................... 7
IV. FACTUAL ALLEGATIONS ................................................................................................ 7
A. Background of Apple’s Product Line.......................................................................... 7
B. Apple’s defection from Google launched a disaster for Apple’s Maps……...............9
C. Apple’s Mapping Application is clearly Defective.....................................................11
D. Apple Has Failed To Honor Its Warranties ...............................................................15
E. Apple’s Misrepresentations........................................................................................16
V. CHOICE OF LAW ALLEGATIONS ...................................................................................17
VI. CLASS ACTION ALLEGATIONS......................................................................................17
VII. CAUSES OF ACTION .......................................................................................................20
VIII. DEMAND FOR RELIEF...................................................................................................31

2

Plaintiff Nancy Romine Minkler (“Plaintiff”), brings this action on behalf of herself and
on behalf of all others similarly situated in the United States against Defendant APPLE, INC.
(hereinafter “Apple” or “Defendant”). Plaintiff’s allegations are made on information and belief
except as to allegations regarding herself which are based on personal knowledge. Plaintiff
alleges as follows:
I.

INTRODUCTION
1.

This is a class action brought on behalf of the Plaintiff and other purchasers of the

Apple iPhone, iPod touch and/or iPad mobile devices (the “Apple Devices”) which utilize
Apple’s iOS operating systems 6.0, 6.1.3, 7.0, or 7.0.3.
2.

One such App is Apple’s “Maps” App. The Maps application has been featured

on the iPhone operating system since the release of the first-generation iPhone on June 29, 2007,
and was powered by Google Maps from then until September 19, 2012. A new version was
announced by Scott Forstall in a keynote address at Apple’s Worldwide Developers
Conference on June 11, 2012.
3.

The new version would use Apple's own mapping system with data provided by a

number of providers instead of Google Maps, mainly through Dutch manufacturer of navigation
systems TomTom. This was a strategic move by Apple to compete with Google's
Android operating system in mapping.
4.

Upon release of Apple’s iOS 6 mobile operating system, it was met by

considerable criticism. Apple issued a statement saying that it is working hard to improve the
technology. “We launched this new map service knowing that it is a major initiative and we are
just getting started with it,” said Trudy Muller, an Apple spokeswoman. “We are continuously
improving it, and as Maps is a cloud-based solution, the more people use it, the better it will get.

3

We’re also working with developers to integrate some of the amazing transit apps in the App
Store into iOS Maps. We appreciate all of the customer feedback and are working hard to make
the customer experience even better.”1
5.

In January 2012, Apple reported its best quarterly earnings ever, with 53% of its

revenue coming from the sale of 37 million iPhones, at an average selling price of nearly $660.
As such, in the fourth quarter of 2012, Apple’s revenue from iPhone sales was $24.4 billion.
6.

Today, Apple boasts that the App Store has over 700,000 apps for iPhone and

iPod touch and 275,000 apps for the iPad. On January 7, 2013, Apple announced that, since
2008, customers have downloaded over 40 billion apps – nearly 20 billion in 2012 alone. See
January 7, 2012 press release. (available at www.apple.com).
7.

Apple heavily encourages purchasers to download apps. For example, since the

inception of the App Store, Apple has told consumers “[t]he more apps you download, the more
you realize there’s almost no limit to what your iPhone can do” and has made similar
representations regarding the iPad and the iPod touch.
8.

Not surprisingly, the availability of apps has been credited with propelling the

popularity of the Apple Devices. Apps are not only an integral part of the Apple Devices
themselves, but are the key feature that has differentiated Apple Devices from similar products.
9.

The App Store is under Apple’s exclusive domain and the Company has ultimate

control of what apps are available for purchase or download by consumers. Furthermore, Apple
has designed the Apple Devices to accept apps only from the App Store.

1

September, 2012 statement by Trudy Muller of Apple.

4

10.

Apple has a checkered history when it comes to delivering services that rely

heavily on the Internet. Siri, its voice-activated virtual assistant, was criticized since it came out
in 2011 for both outages and its frequent misunderstandings of user commands.
11.

According to a New York Times article, “[a]t least Apple signaled that Siri was a

work-in-progress by describing it as being in beta. The maps service carries no such disclaimer
and is likely being viewed even more critically than Siri because maps have become such an
essential tool for smartphone users.”2 The article stated, [t]he service was blasted for everything
from inaccuracies in its location data for businesses to the sometimes distorted imagery of
landmarks.” Id.
II.

JURISDICTION AND VENUE
12.

This Court has jurisdiction over the instant matter pursuant 28 U.S.C. §1332(d)

and the Class Action Fairness Act of 2005 (“CAFA”), 28 U.S.C. § 1711, et seq., which vests
original jurisdiction in the district courts of the United States for any multi-state class action
where the aggregate amount in controversy exceeds $5 million and where the citizenship of any
member of the class of plaintiffs is different from that of any defendant. The amount-incontroversy and diverse-citizenship requirements of CAFA are satisfied in this case.
13.

Apple sells the iPhone and iPad nationwide and, in light of recent press and other

reports of widespread issues with Apple’s defective map applications, coupled with the
enormous sales of Apple iPhones and iPads and given the damages caused by the defective
product, Plaintiff believes, and therefore alleges, that the aggregate amount in controversy well
exceeds $5 million.

2

http://bits.blogs.nytimes.com/2012/09/20/apple-on-its-ios-6-maps-things-can-only-get-better/?_r=0

5

14.

Apple, a corporation doing business nationwide, transacts substantial business in

this judicial district and is otherwise subject to personal jurisdiction here. Accordingly, Apple is
deemed to reside here, and venue is appropriate in this Court under 28 U.S.C. § 1391(b) and (c).
In addition, a substantial part of the events or omissions giving rise to Plaintiff’s claims occurred
here, underscoring the propriety of this choice of this venue. 28 U.S.C. § 1391(b).
III.

THE PARTIES
A.

Plaintiff

15.

Plaintiff Nancy Romine Minkler (“Minkler”) is a resident of California. Minkler

has been a devoted Apple customer since 2007. Minkler currently owns an iPhone 5 and an iPad.
16.

Prior to upgrading to the iOS 6 and 7, Plaintiff Minkler saw various marketing

materials describing the innovation, accuracy, and versatility of Apple’s Map App, including
statements made by Scott Forstall at the WWDC in June of 2012 touting the new iOS 6 as a
“major initiative.” Prior to the release of the new Maps app, commentators had focused on the
new 3D or Flyover facility and it was widely praised as outclassing Google's long standing but
weak equivalent.
17.

Just prior to the release of Apple’s iPhone 5 on September 21, 2012, Minkler

visited the Apple website which touted the “non-stop work” of Apple that led to “a number of
improvements to Maps.”3 These representations about the new and improved Apple Maps
influenced her decision to purchase the iPhone 5.
18.

Approximately two days after purchasing the iPhone 5, during normal and

expected use of the product, the Maps Application improperly labeled numerous streets,
buildings and landmarks, as well as led her to several incorrect locations.
3

http://en.wikipedia.org/wiki/Maps_(application)

6

19.

Had any of these marketing materials or advertisements disclosed that the iPhone

5 Map was defective she would not have purchased it, and she certainly would not have paid as
much for it.
B.

Defendant Apple Inc.

20.

Defendant Apple, Inc. (formerly known as Apple Computer, Inc. and referred to

herein as “Apple” or “Defendant”) is a publicly traded company, incorporated in California, with
its worldwide corporate headquarters and principal place of business in Cupertino, California.
Apple designs, manufactures, markets, distributes, and sells personal computers, laptops,
consumer electronics, networking and connectivity products, computer software, applications,
and Internet products and technologies. Apple sells its products, including the iPhone 5, over the
Internet and at its numerous retail stores, including 48 retail stores in California.
IV.

FACTUAL ALLEGATIONS
A.
21.

Background of Apple’s Product Line
Apple designs both the hardware component of the Apple Devices as well as the

operating system (the iOS) that runs each device
22.

The iPhone is the most popular of the three devices. For example, in 2011 and

2012, Apple sold 72 million and 125 million iPhones respectively. Apple sold approximately 11
million and 8 million iPods touches and 32 million and 58 million iPads in the same time period.
23.

The iPod touch is a portable digital music and media player based on Apple’s

proprietary iOS and includes a multi-touch interface and the App Store.
24.

The iPhone combines a mobile phone, an iPod touch, and an internet

communication device into a single hand-held product. The iPhone is therefore more than simply
7

a phone and Apple’s marketing of the iPhone has focused not on its ability to make phone calls,
but on the availability and utility of third-party apps. Indeed, since the launch of the App Store,
Apple’s Annual Reports to shareholders have cautioned that “[t]he Company believes decisions
by customers to purchase its hardware products depend in part on the availability of third-party
software applications and services for the Company’s products…with respect to iOS devices, the
Company relies on the continued availability and development of compelling and innovative
software applications, which are distributed through a single distribution channel, the App
Store.”
25.

The iPad is a multi-purpose mobile device. Like the iPhone and the iPod touch,

the iPad is based on the Company’s multi-touch technology and comes installed with the App
Store. The iPhone, iPod touch and the iPad share many of the same apps.
26.

The price of each Apple Device depends on the available memory on the device

measured in gigabytes (GB). Apple sells a locked iPhone starting at $199 for a 16GB phone,
$299 for a 32GB phone, and $399 for a 64GB phone.
27.

Thus, Apple sells additional memory at a premium, telling consumers, “[t]he

more gigabytes you have, the more content you can store on your iPhone – apps, photos, HD
videos, music, movies and more.”
28.

Similarly, Apple charges a premium for additional space on the iPad: $499 for the

16GB iPad, $599 for the 32GB iPad, and $699 for the 64GB iPad. As with the iPhone, Apple
encourages consumers to purchase an iPad with a larger capacity.
29.

Finally, the iPod touch is priced at $199 for 16GB, $299 for 32GB and $399 for

64GB.

8

30.

Thus, it appears that, after the first 16GB of memory, every additional 16GB of

memory space, is worth approximately $100. Every app takes up a portion of the available
memory on the Apple Device depending on the size of the app.
B.

Apple’s defection from Google launched a disaster for Apple’s Maps.

31.

Upon the release of the new version on September 19, 2012, many users and

commentators were critical of the app for a variety of reasons ranging but not limited to improper
labeling of places to unmapped roads.4 A legion of technology writers classified Apple Maps as
the number one tech screw up of 2012. The Apple Maps launch has been described as
an “apocalyptic horror show.”5
32.

Users complained about the errors it contained. This included showing the wrong

location of the Apple Store in Sydney, Australia, marking an entire city as a hospital,
misclassifying a nursery as an airport, and identifying the nearest gas station to be as far as 76
miles away from the user's location.6 3D views appearing in Maps were also completely distorted
in most cases, with iconic constructions like the Brooklyn Bridge seeming to be collapsed or
impossibly built.7
33.

In response to the criticism, Apple issued a statement, saying the company is

"continuously improving" Maps and they "appreciate all of the customer feedback." 8 On
September 28, 2012, Apple CEO Tim Cook posted a letter on the Apple website apologizing for
4

Allsopp, Ashleigh (September 1, 2012). "Apple's iOS 6 Maps app fails to impress, users want Google Maps
back".Macworld. Retrieved September 21, 2012.
5

http://gizmodo.com/5967025/the-biggest-tech-screw+ups-of-the-year/
"17 People Apple Maps Has Already Horribly Misled".Gizmodo. September 20, 2012. Retrieved September 23,
2012.
6

7

Levine, Eitan (September 2012). "Apple iOS 6 Maps Fails". Heavy. Retrieved June 6, 2013.

8

Wingfield, Nick (September 20, 2012). "Apple on Its iOS 6 Maps: Things Can Only Get Better". The New York
Times. Retrieved September 25, 2012.

9

Maps and suggesting that customer use non-Apple map applications or websites while Apple
works to improve Maps.9 The letter stated:
To our customers,
At Apple, we strive to make world-class products that deliver the best
experience possible to our customers. With the launch of our new Maps last
week, we fell short on this commitment. We are extremely sorry for the
frustration this has caused our customers and we are doing everything we can
to make Maps better.
We launched Maps initially with the first version of iOS. As time progressed,
we wanted to provide our customers with even better Maps including features
such as turn-by-turn directions, voice integration, Flyover and vector-based
maps. In order to do this, we had to create a new version of Maps from the
ground up.
There are already more than 100 million iOS devices using the new Apple
Maps, with more and more joining us every day. In just over a week, iOS
users with the new Maps have already searched for nearly half a billion
locations. The more our customers use our Maps the better it will get and we
greatly appreciate all of the feedback we have received from you.
While we’re improving Maps, you can try alternatives by downloading map
apps from the App Store like Bing, MapQuest and Waze, or use Google or
Nokia maps by going to their websites and creating an icon on your home
screen to their web app.
Everything we do at Apple is aimed at making our products the best in the
world. We know that you expect that from us, and we will keep working nonstop until Maps lives up to the same incredibly high standard.
Tim Cook
Apple’s CEO
September 28, 2012 Letter from Apple CEO, Tim Cook.
34.

In October 2012, Scott Forstall, Senior Vice President of iOS software and the

executive responsible for Maps (or "directly responsible individual," in Apple jargon), was

9

10

removed from his position.10 According to Adam Lashinsky of Fortune, Forstall sealed his fate
when he refused to sign the apology for Maps.11
35.

Apple Maps was named one of the Top 10 technology 'fails' of 2012 by CNN in

December 2012.12
C.

Apple’s Mapping Application is clearly defective.

36.

Last month, the International Business Times reported, “Alaska’s Fairbanks

International Airport closed one of its main access routes for aircrafts due to a major flaw with
the Apple Maps navigation application, which is available for iOS 6 and iOS 7 users.” 13 Alaska
drivers attempting to get turn-by-turn directions to Fairbanks International Airport with Apple
Maps are directed across one of the runways, straight to the main terminal. Id. According to
the Alaska Dispatch, several drivers have been spotted driving along the taxiway and crossing
the runway to reach the airport ramp side of the passenger terminal. Id.
37.

The International Business Times printed a picture of the Apple Map at issue,

which is below:

10

11

12
13

Rodriguez, Salvador (October 29, 2012). "Apple ousts Scott Forstall, executive in charge of Maps and Siri". Los
Angeles Times. Retrieved October 29, 2012. "Apple's head of mobile software, Scott Forstall, is leaving the
company following the release of Apple Maps and Siri, two major projects that were considered flops for the
technology giant."; see also, "Apple Announces Changes to Increase Collaboration Across Hardware, Software
& Services". Apple Inc. October 29, 2012. Retrieved October 29, 2012.
Lashinsky, Adam (October 29, 2012). "Inside Apple's major shakeup". Fortune. Retrieved December 10, 2012.
http://www.cnn.com/2012/12/28/tech/web/tech-fails-2012/index.html?hpt=hp_bn5
http://www.ibtimes.com/apple-maps-fails-again-alaska-drivers-directed-airport-taxiway-no-fix-sight-1410830

11

12

38.

The Huffington Post published an article titled “The 19 Most Ridiculous Apple

Map Fails”14 and the following are notables:

14

http://www.huffingtonpost.com/2012/09/20/apple-map-fails-ios-6-maps_n_1901599.html

13

14

D.

Apple Has Failed To Honor Its Warranties

39.

Normal and reasonable use of the product, including the use advertised by Apple,

resulted in the dissemination of potentially dangerous information.
40.

Apple is, and was, aware of the defects in Apple Maps. As reported by the media,

15

Apple was aware of this design flaw and was quietly working to address the defective app on
every iPhone 5.
41.

Meanwhile, Apple has failed to address, much less resolve, the important issue of

how to remedy the Mapping Application.
42.

Ultimately, Apple has charged consumers to repair or replace defective

applications or left them no option but to seek repair from a less-expensive third-party repair
provider, thereby invalidating the warranty issued by Apple going forward. No warning of the
iPhone 5’s map app was given prior to the sale of millions of the iPhone 5.
43.

Apple’s refusal to cure this problem breaches its one year warranty, which

“warrants this Apple-branded hardware product against defects in materials and workmanship
under normal use for a period of one (1) year from the date of retail purchase by the original end
user purchaser (‘Warranty Period’).”
E.

Apple’s Misrepresentations

44.

Plaintiff and members of the Class relied upon Apple’s representations with

respect to the cost of their Apple Devices when making their purchasing decisions, and the
omission of material facts to the contrary was an important factor in their decision.
45.

For example, Plaintiff Minkler viewed the Apple website and saw in-store

advertisements prior to purchasing her iPhone. She chose to upgrade to the iPhone 5 based on
representations regarding iOS 6, a substantial part of which was the defective Apple Maps. The
apps were an essential part of the device for Plaintiff Minkler. Plaintiff Minkler travels
frequently in Los Angeles and expected her Apple Maps App to perform as intended. If Plaintiff

16

Minkler knew that Apple Maps would be critically flawed she would not have paid as much for
the iPhone, or would not have purchased the iPhone.
46.

Plaintiff and members of the Class would not have purchased their Apple Devices

and/or would not have paid as much for these devices if they knew the true nature of the Apple
Devices.
V.

CHOICE OF LAW ALLEGATIONS
47.

Apple is headquartered in Cupertino, California.

48.

Apple does substantial business in California, with a significant portion of the

proposed Nationwide Class located in California.
49.

Plaintiffs injuries were caused by Apple's wrongful conduct in false advertising

that originated in California. Apple's misleading marketing, promotional activities and literature
were coordinated at, emanate from and are developed at its California headquarters, and all
critical decisions regarding marketing and advertising were made within the State of California.
VI.

CLASS ACTION ALLEGATIONS
50.

Plaintiff brings this action on behalf of herself and all persons similarly situated

pursuant to the Federal Rules of Civil Procedure 23(a), 23(b)(1), (b)(2) and (b)(3). The proposed
class is both ascertainable and shares a well-defined community of interest in common questions
of law and fact. Furthermore, this action satisfies the numerosity, commonality, typicality,
adequacy, predominance and superiority requirements. The Class is defined as follows:
All persons and entities who purchased in the United States an Apple
Device for their own use and not for resale, which uses utilizes Apple’s iOS
operating systems 6.0, 6.1.3, 7.0, or 7.0.3. Excluded from the Class are (1)
Defendant; (2) any entity in which Defendant has a controlling interest; (3)
Defendant’s officers, directors, and employees; (4) Defendant’s legal

17

representatives, successors, and assigns; and (5) the Court to which this case
is assigned.
51.

Plaintiff does not know the exact number of Class members because such

information is in the exclusive control of Defendant. However, Plaintiff believes that Class
members are sufficiently numerous, most likely in the millions of purchasers, and geographically
dispersed throughout the nation, and that joinder of all Class members is impracticable. The
information as to the identity of the Class members can be substantially determined from records
maintained by Defendant and its agents such as sales records, registration records, warranty
agreements, warranty claim records, and public notification.
52.

Plaintiff’s claims are typical of, and not antagonistic to, the claims of the other

Class members because Plaintiff is an iPhone and iPad owner and by asserting her claims, she
will also advance the claims of all members of the Class who were damaged by the same
wrongful conduct of Apple as alleged herein, and the relief sought is common to the Class.
53.

The common legal and factual questions which do not vary from Class member to

Class member as to the Apple Devices, and which may be determined without reference to
individual circumstances of any Class member include, but are not limited to, the following:
a.

Whether the Apple Maps App contains a design defect;

b.

Whether the Apple Maps App is a manufacturing defect;

c.

Whether the Apple Devices are susceptible to malfunction as a result of such
defect(s);

d.

Whether Apple has breached its express written warranty;

e.

Whether Apple has breached an express written warranty based on representations
it made in marketing materials;

f.

Whether Apple has breached the implied warranty of merchantability;
18

g.

Whether Apple’s marketing and descriptions of the Apple Devices were likely to
deceive a reasonable consumer;

h.

Whether Apple knew or should have known that the Apple Devices were
vulnerable to malfunctions;

i.

Whether Apple had a duty to Plaintiff and the Class to disclose the true
nature of the Apple Devices’ mapping defects;

j.

Whether the facts withheld by Apple from Plaintiff and the Class would be
material to a reasonable person;

k.

Whether Apple engaged in unfair competition when it represented that the
Apple Devices and Map Apps had characteristics that it does not actually have;

l.

Whether the Apple Devices fail to perform in accordance with the reasonable
expectations of ordinary consumers;

m.

Whether Plaintiff and the Class are entitled to compensatory damages, and
the amount of such damages; and

n.

Whether Apple should be ordered to make full restitution to Plaintiff and
members of the Class, as well as injunctive relief.

54.

These common questions and others predominate over questions, if any, that

affect only individual members of the Class.
55.

The claims of the Plaintiff are typical of the claims of the Class. There are no

material conflicts with any other member of the Class that would make class certification
inappropriate. Plaintiff and his counsel will fairly and adequately represent the interests of the
Class. Plaintiff has retained attorneys experienced in the prosecution of class actions, including
complex cases and consumer actions, and Plaintiff will prosecute this action vigorously.

19

56.

A class action is superior to other available methods for the fair and efficient

adjudication of this controversy because individual litigation of the claims of all Class members
is impracticable. Even if every Class member could afford individual litigation, the court system
could not. It would be unduly burdensome on the courts if individual litigation of numerous
cases would proceed. By contrast, the conduct of this action as a class action, with respect to
some or all of the issues presented in this Complaint, presents fewer management difficulties,
conserves the resources of the parties and of the court system, and protects the rights of each
Class member.
57.

Prosecution of separate actions by individual Class members would create the risk

of inconsistent or varying adjudications, establishing incompatible standards of conduct for
Defendant, and would magnify the delay and expense to all parties and to the court system
resulting from multiple trials of the same complex factual issues.
58.

Injunctive relief is appropriate as to the Class as a whole because Defendant has

acted or refused to act on grounds generally applicable to the Class.
59.

Whatever difficulties may exist in the management of the class action will be

greatly outweighed by the benefits of the class action procedure, including, but not limited to,
providing Class members with a method for the redress of claims that may not otherwise warrant
individual litigation.
VII.

CAUSES OF ACTION
FIRST CAUSE OF ACTION
(Breach of Express Warranty In Violation Of
Cal. Comm. Code § 2313)
Plaintiff incorporates and realleges, as though fully set forth herein, each of the

paragraphs set forth above.
20

60.

Defendant Apple issued written warranties to Plaintiff and the Class wherein

Defendant warranted that its Apple Devices were free of defects in materials and workmanship.
61.

In addition, Plaintiff was exposed to representations made by Apple in its

marketing materials regarding iOS 6 and Apple Maps, e.g., keynote address from Apple
Executive touting the new iOS 6 as a “major initiative” and persistent encouragement by Apple
to stick with its products because “the more our customers use our Maps the better it will get.”
September 28, 2012 Letter from Apple CEO, Tim Cook.
62.

In fact, the Apple Devices at issue are not fit for its advertised purpose of

providing a product that contains a Map function which accurately directs the user to the desired
destination, accurately depicts landmarks, etc. Despite CEO Cook’s September 28, 2012 letter
promising improvements, the Huffington Post and several other media outlets reported just
weeks ago that Apple Maps directed users across an airport runway.15
63.

Apple has had actual notice of the Apple Maps defects by virtue of the media

coverage of the problems (e.g. – The New York Times, Fortune, Wall Street Journal), including
the hundreds of messages posted on technology websites such as MarketWatch.com, and
Gizmodo.com, and by virtue of the filing of this lawsuit. Additionally, as unsophisticated
consumers, Plaintiff and the Class are relieved of any notice requirement, and Apple, who has
superior knowledge of its technology, is estopped from asserting lack of notice as a defense. In
addition, on September 26, 2013, Plaintiffs’ counsel provided separate written notice of the
faulty Apple Maps to Apple, Inc.

15

http://www.huffingtonpost.com/2013/09/25/apple-maps-bad_n_3990340.html

21

64.

Defendant has breached its warranty obligations by not agreeing to refund the

purchase price of the Apple Devices to dissatisfied customers and not agreeing to replace without
charge all flawed Apple Maps applications.
65.

Defendant’s breach of the warranty was a substantial factor in causing Plaintiff

and the Class to suffer economic losses and other general, consequential and specific damages,
according to proof.
WHEREFORE, Plaintiff and the Class pray for relief as set forth below.
SECOND CAUSE OF ACTION
(Breach of Implied Warranty In Violation Of
Cal. Comm. Code § 2314)
66.

Plaintiff incorporates and realleges, as though fully set forth herein, each of the

paragraphs set forth above.
67.

Defendant had direct dealings with Plaintiff and the Class through its vast

marketing efforts. As a result of their direct dealings with Defendant, Plaintiff and the Class
purchased Apple Devices from Apple and/or Apple-authorized retailers. Notwithstanding this,
privity is not required because Plaintiff and the Class are the intended beneficiaries of
Defendant’s implied warranties.
68.

By operation of Cal. Com. Code § 2314, Defendant impliedly warranted that its

devices are merchantable, fit for its ordinary purpose, and free of defects.
69.

In fact, the devices are not in merchantable condition because the Map application

is defective as described above. The iPhone 4 cannot perform its ordinary purpose because Apple
Maps does not accurately direct the user to the desired destination, does not accurately depict
landmarks, etc., when used in the ordinary course and for the ordinary purpose for which devices
were sold.
22

70.

Defendant breached the warranties by undertaking the wrongful acts herein

alleged. The Apple Devices and, specifically, the pre-installed Apple Maps are substantially
likely to malfunction before the end of their useful life.
71.

As a result of Defendant’s breach of the warranty, Plaintiff and the Class have

suffered economic losses and other general, consequential and specific damages, including the
amount paid for their defective Apple Devices, according to proof.
WHEREFORE, Plaintiff and the Class pray for relief as set forth below.
THIRD CAUSE OF ACTION
(Violation of the Magnuson-Moss Warranty Act
15 U.S.C. § 2301 et seq)

72.

Plaintiff incorporates and realleges, as though fully set forth herein, each of the

paragraphs set forth above.
73.

Plaintiff and Class members are “consumers” within the meaning of the

Magnuson-Moss Act.
74.

Defendant is a “supplier” and “warrantor” within the meaning of the Magnuson-

Moss Act.
75.

The Apple Devices are a “consumer product” within the meaning of the

Magnuson-Moss Act.
76.

Defendant’s written affirmations of fact, promises and/or descriptions as alleged

herein are each a “written warranty” as to the Apple Maps functionality and accurate
performance and/or there exists an implied warranty for the sale of such products within the
meaning of the Magnuson-Moss Act.

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77.

For the reasons detailed above, Defendant breached these express and implied

warranties, as the Apple Devices did not perform as Defendant represented or were not fit for
their ordinary use. Defendant Apple has refused to remedy such breaches, and its conduct caused
damages to Plaintiff and member of the Class.
78.

The amount in controversy of Plaintiff’s individual claims meets or exceeds the

sum of $25. The amount in controversy of this action meets or exceeds the sum or value of
$50,000 (exclusive of interest and costs) computed on the basis of all claims to be determined in
this suit.
79.

As Defendant has refused all previous requests, resorting to any informal dispute

procedure and/or affording Defendant another opportunity to cure these breaches of warranties is
unnecessary and/or futile. Any remedies available through any informal dispute settlement
procedure would be inadequate under the circumstances. Any requirement under the MagnusonMoss Act or otherwise that Plaintiff resorts to any informal dispute settlement procedure and/or
afford Defendant a reasonable opportunity to cure the breach of warranties described above is
excused and/or has been satisfied.
80.

Plaintiff seeks to revoke her acceptance of the defective Apple Devices, or, in the

alternative, seek all damages, including diminution in value of her Apple Devices in an amount
to be proven at trial. Class members are entitled to recover damages, specific performance, costs,
attorneys’ fees, rescission, and/or other relief as is deemed appropriate.
FOURTH CAUSE OF ACTION
(Violations of Cal. Civ. Code § 1750 et seq.)
Plaintiff incorporates the foregoing allegations as if fully set forth herein.

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81.

In violation of Civil Code, §1750, et seq., Apple has engaged and is engaging in

unfair and deceptive acts and practices in the course of transactions with Plaintiff, and such
transactions are intended to and have resulted in sales of any merchandise.
82.

In violation of the CLRA, Apple has engaged, and is engaging, in unfair and

deceptive acts and practices in the course of transaction with Plaintiff, and such transactions are
intended to and have resulted in the sale of goods to consumers.
83.

Plaintiff and members of the Class are consumers as that term is used in the

CLRA Act because they sought or acquired Apple’s goods (the Apple Devices) for personal,
family, or household purposes. Apple’s past and ongoing acts and practices include but are not
limited to: Apple’s representations that its goods were of a particular standard, quality, and
grade, when in fact, they were of another, in violation of Civil Code, §1770(a)(7).
84.

Specifically, as described herein, Apple has made the following representations,

expressly or by implication to Plaintiff and other members of the Class about the Apple Devices:
(i) that Apple designed the Apple Devices to safely and reliably download and update its apps,
(ii) that the App Store does not permit apps that violate its developer guidelines to be sold or to
be made available for free through the App Store, (iii) that “Apple takes precautions – including
administrative, technical, and physical measures – to safeguard [purchaser’s] personal safety,”
and, (iv) that Apple Maps will improve as more consumers use it.
85.

These representations were materially misleading.

86.

Plaintiff and members of the Class would not have purchased the Apple Devices

and/or would not have paid as much for them if Apple disclosed that the above representations
were false and if there were aware that Apple Maps would not provide public transit directions,
would mislabel restaurants, landmarks, streets, etc., and provide inaccurate directions.

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87.

Apple’s violations of the CLRA have caused damage to Plaintiff and the other

Class members and threaten additional injury if the violations continue. This damage includes
the injuries and losses set forth above.
88.

Under §1782 of the CLRA, Apple has received notice in writing by certified mail

of the particular violations of §1770 of the CLRA from Plaintiff on behalf of all Class members,
demanding Defendant offer to resolve the problems associated with the actions detailed above
and give notice to all affected consumers of the intent to so act.
89.

Thirty days have passed since Plaintiff sent the CLRA letter, registered mail

return receipt requested, and Apple has failed to take the actions required by the CLRA on behalf
of all affected consumers. Plaintiff and the Class are therefore entitled to all forms of relief
provided under § 1780 of the CLRA.
90.

Based on its knowledge or reckless disregard of the facts as detailed herein, Apple

was guilty of acting with malice, oppression or fraud.
FIFTH CAUSE OF ACTION
(Violations of Cal. Bus. & Prof. Code § 17500 et seq.)
Plaintiff incorporates by reference each and every preceding paragraph as though fully set
forth herein.
91.

Plaintiff and members of the Class have suffered injury in fact and have lost

money or property as a result of Apple’s violation of California Business & Professions Code
§17500, et seq.
92.

Apple’s acts and practices as described herein have deceived and/or are likely to

deceive members of the Class and the public. Apple has repeatedly advertised that its products
were safe and secure. Apple has furthered assured consumers that it closely monitors the apps

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available in the App Store. Instead, Apple has left its customers vulnerable to all hazards which
result from inaccurate directions, and flawed maps.
93.

By its actions, Apple is disseminating uniform advertising concerning its products

and services, which by its nature is unfair, deceptive, untrue, or misleading within the meaning
of California Business & Professions Code §17500, et seq. Such advertisements are likely to
deceive, and continue to deceive, the consuming public for the reasons detailed above.
94.

The above-described false, misleading, and deceptive advertising Apple

disseminated continues to have a likelihood to deceive in that Apple has failed to disclose that its
mapping application does not provide public transit directions, mislabels restaurants, landmarks,
streets, etc., and provides inaccurate directions.
95.

In making and disseminating the statements alleged herein, Apple should have

known its advertisements were untrue and misleading in violation of California Business &
Professions Code §17500, et seq. Plaintiff and members of the Class based their decisions to
purchase the Apple Device in substantial part on Apple’s misrepresentations and omitted
material facts. The revenues to Apple attributable to products sold in those false and misleading
advertisements amount to millions of dollars. Plaintiff and the Class were injured in fact and lost
money or property as a result.
96.

The misrepresentations and non-disclosures by Apple of the material facts

detailed above constitute false and misleading advertising and therefore constitute a violation of
California Business & Professions Code § 17500, et seq.
97.

As a result of Apple’s wrongful conduct, Plaintiff and the Class request that this

Court enjoin Apple from continuing to violate California Business & Professions Code § 17500,
et seq.

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SIXTH CAUSE OF ACTION
(Violations of Cal. Bus. & Prof. Code § 17200 et seq.)
Plaintiff incorporates the foregoing allegations as if fully set forth herein.
98.

In violation of California Business and Professions Code, §17200 et seq., (“Unfair

Competition Law”). Apple’s conduct in this regard is ongoing and includes, but is not limited to,
statements made by Apple and Apple’s omissions, including as set forth above.
99.

Plaintiff, on behalf of herself and on behalf of each member of the Class, seeks

restitution, injunctive relief, and other relief allowed under the Unfair Competition Law.
100.

Apple’s business acts and practices are unlawful, in part, because they violate

California Business and Professional Code, §1750, et seq., which prohibits false advertising, in
that they were untrue and misleading statements relating to Apple’s provision of goods and with
the intent to induce consumers to enter into obligations relating to such goods, and regarding
which statements Apple knew, or which by exercising reasonable care should have known, were
untrue and misleading.
101.

Apple’s business acts and practices are also unlawful in that, as set forth herein,

they violate the Consumer Legal Remedies Act, California Civil Code, §1750, et seq.
102.

Plaintiff reserves the right to identify additional provisions of the law violated by

Apple as further investigation and discovery warrants.
103.

Apple is therefore in violation of the unlawful prong of the Unfair Competition

104.

Apple’s business acts and practices are also unfair because they have caused harm

Law.

and injury-in-fact to Plaintiff and members of the Class and for which Apple has no justification

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other than to increase, beyond what Apple would have otherwise realized, its market share and
revenue from sale of the Apple Devices.
105.

Apple’s conduct lacks reasonable and legitimate justification in that it has

benefited from such conduct and practices while Plaintiff and members of the Class have been
misled as to the nature and integrity of the Apple Devices and have lost money, including the
purchase price of the Apple Device and/or the difference of the inflated price and the price Apple
should have charged for a product that fully disclosed the true nature of the Apple Devices.
106.

Apple’s conduct offends California public policy, the Consumer Legal Remedies

Act, and/or the state constitutional right of privacy.
107.

In addition, Apple’s modus operandi constitutes a sharp practice in that Apple

knew and should have known that consumers care about the accuracy of maps, but are unlikely
to be aware or/and able to detect the means by which Apple and/or its licensors were conducting
themselves in a manner adverse to its commitments and its users’ interests. Apple is therefore in
violation of the unfair prong of the Unfair Competition Law.
108.

Apple’s acts and practices were also fraudulent within the meaning of the UCL

because they were likely to mislead members of the public.
109.

While Apple represented at all times that, the Apple Devices were safe and

secure; in actuality, the Maps application guided Plaintiffs to unknown locations. Apple did not
inform purchasers, like Plaintiff, that their Apple Devices may be vulnerable to mapping
fallacies such as: mislabeled restaurants, landmarks, streets, etc., and publishing inaccurate
directions, but instead, represented at all relevant times that “Apple takes precautions – including
administrative, technical, and physical measures – to safeguard [purchaser’s] personal safety.”

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110.

By engaging in the above-described acts and practices, Apple has committed one

or more acts of unfair competition within the meaning of the UCL. Plaintiffs and members of the
Class have suffered an injury-in-fact and have lost money and property, including, but not
limited to, the expected utility and performance of their Apple Devices, the purchase price of
their Apple Devices, and/or the difference between the price Class members paid and the actual
worth of the product has Apple disclosed the true nature of the Apple Devices.
111.

Apple had a duty to disclose the material content and security characteristics of

the Apple Devices and their operations because (i) it knew or should have known about these
characteristics at the time that Plaintiff and other members of the Class purchased their Apple
Devices because Apple created the Apple Devices and the iOS that ran these devices; (ii) had
exclusive knowledge of material facts that were not known to Plaintiff; and (iii) made
representations regarding the Apple Devices’ administrative, technical, and physical measures
taken to safeguard [purchaser’s] personal safety but that Apple Maps would lead consumers to
unknown, sometimes dangerous places.
112.

Plaintiff and members of the Class were deceived by Apple’s representations and

cultivation of its reputation for security and innovation and reasonably relied on Apple’s
representations and omissions as described herein and were consequently injured as alleged
herein.
113.

Plaintiff and members of the Class have suffered injuries as a direct and

proximate result of Apple’s unlawful, unfair and fraudulent business practices.

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SEVENTH CAUSE OF ACTION
Negligent Misrepresentation
Plaintiff incorporates by reference each and every preceding paragraph as though fully set
forth herein.
114.

Apple claims to review each application before offering it to its users, purports to

have implemented app standards, and claims to have created measures to protect the personal
safety of its customers.
115.

However, unbeknownst to consumers such as Plaintiff, Apple failed to properly

monitor app makers and to provide accurate mapping information to Plaintiffs. In making these
representations to Plaintiff and the Class, Apple intended to induce Plaintiff and the Class to
purchase the Apple Devices.
116.

At all times herein, Plaintiff and the Class were unaware of the falsity of Apple’s

statements. Plaintiff and the Class reasonably acted in response to the statements made by Apple
when they purchased an Apple device and updated the operating systems.
117.

As a proximate result of Apple’s negligent misrepresentations, Plaintiff and Class

members purchased Apple Devices.
VIII. DEMAND FOR RELIEF
WHEREFORE, Plaintiff, on behalf of herself and on behalf of the members of the Class
defined herein, as applicable, pray for judgment and relief as follows as appropriate for the above
causes of action:
A.

An order certifying this case as a class action and appointing Plaintiff and her

counsel to represent the Class;

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B.

A temporary, preliminary and/or permanent order for injunctive relief enjoining

Apple from pursuing the policies, acts and practices complained of herein;
C.

A temporary, preliminary and/or permanent order for injunctive relief requiring

Apple to undertake an informational campaign to inform members of the general public as to the
wrongfulness of Apple’s practices; and
D.

An award of actual, statutory and/or exemplary damages, as appropriate for the

particular Causes of Action;
E.

An order requiring disgorgement of Apple’s ill-gotten gains by requiring the

payment of restitution to Plaintiff and members of the Class, as appropriate for the particular
Causes of Action;
F.

Reasonable attorneys’ fees;

G.

All related costs of this suit;

H.

Pre- and post-judgment interest; and

I.

Such other and further relief as the Court may deem necessary or appropriate.
JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury on all claims set forth herein.
Dated: November 15, 2013.

`

BY:/s/ Gregory D. Wolflick
Gregory D. Wolflick
WOLFLICK & SIMPSON
130 North Brand Blvd., Suite 410
Glendale, California 91203
818.243.8300
818.243.0122 - Facsimile

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/s/ Donald W. Stewart
Donald W. Stewart (Pro Hac Vice pending)
STEWART & STEWART, P.C.
P.O. Box 2274
Anniston, Alabama 36202
[phone]
[phone] – Facsimile
/s/ J. Paul Lynn
J. Paul Lynn (Pro Hac Vice pending)
STEWART & STEWART, P.C.
1826 3rd Avenue North, Suite 300
Bessemer, AL 35020
[phone]
[phone] - Facsimile
Counsel for Plaintiffs

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