Minkler v. Apple Inc

Filing 27

Declaration of Alec Cierny in Support of 24 MOTION to Dismiss Complaint with Exhibit filed byApple Inc. (Related document(s) 24 ) (Collins, Joseph) (Filed on 3/3/2014)

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PAUL J. HALL (SBN 066084)
[e-mail]
ALEC CIERNY (SBN 275230)
[e-mail]
DLA PIPER LLP (US)
555 Mission Street, Suite 2400
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]
JOSEPH COLLINS (Admitted Pro Hac Vice)
[e-mail]
DLA PIPER LLP (US)
203 North LaSalle Street, Suite 1900
Chicago, IL 60601-1293
Tel: [phone]
Fax: [phone]
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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NANCY ROMINE MINKLER,
Individually and on Behalf of All Others
Similarly Situated,
Plaintiffs,
v.

Defendant.

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DECLARATION OF ALEC CIERNY IN
SUPPORT OF DEFENDANT APPLE
INC.’S MOTION TO DISMISS
COMPLAINT
(FEDERAL RULES OF CIVIL
PROCEDURE RULES 12(B)(6) AND 9(B))

APPLE INC.,

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CASE NO. 5:13-cv-05332-EJD

DATE:
JULY 18, 2014
TIME:
9:00 A.M.
COURTROOM: 4

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DLA P IPER LLP (US)
SA N FRA NCI S CO

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EAST\71726925.1

CIERNY DECL. ISO DEFENDANT APPLE INC.’S MOTION TO DISMISS COMPLAINT
CASE NO. 5:13-CV-05332-EJD

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I, Alec Cierny, hereby declare as follows:
1.

I am an associate of the law firm of DLA Piper LLP (US), counsel of record for

Defendant Apple Inc. (“Apple”) in this action. I am one of the attorneys responsible for the
representation of Apple in this action. The facts set forth below are personally known to me to be
true and correct, and, if called as a witness, I could and would competently testify to the facts
stated herein.

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2.

Attached to this declaration as Exhibit 1 is a true and correct copy of the

Wikipedia article cited by Plaintiff in paragraph 17, n.3 of her Complaint. I obtained this article
from http://en.wikipedia.org/wiki/Maps_(application) on February 26, 2014.
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and correct and this declaration is executed on March 3, 2014, in San Francisco,
California.

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/s/ Alec Cierny
ALEC CIERNY

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DLA P IPER LLP (US)
SA N FRA NCI S CO

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EAST\71726925.1

CIERNY DECL. ISO DEFENDANT APPLE INC.’S MOTION TO DISMISS COMPLAINT
CASE NO. 5:13-CV-05332-EJD

Exhibit 1

Maps (application) - Wikipedia, the free encyclopedia

Page 1 of 7

Maps (application)
From Wikipedia, the free encyclopedia

Maps is a mapping service application developed by
Apple Inc. for its iOS and OS X operating systems. It
allows turn-by-turn navigation by car or walk
including re-routing.

Maps

Contents
■
■
■
■
■
■
■

1 Background
2 Flyover
3 Criticism
4 Competitors
5 Updates
6 References
7 External links

Background
The Maps application has been featured on the iOS
(then iPhone OS) 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.[1] A new version was announced
by Scott Forstall at WWDC 2012 keynote on June 11,
2012 that would use Apple's own mapping system
with data provided by a number of providers instead
of Google Maps,[2][3] mainly through Dutch
manufacturer of navigation systems TomTom,[4] and a
Chinese mapping company specifically for just the
Chinese market version, AutoNavi.[5]
On June 10, 2013, at the Apple Worldwide
Developers Conference, Craig Federighi announced
that Maps would also be provided with OS X
Mavericks in late 2013.[6][7]

Flyover
Locations available in 3D are:

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

Flyover view in iOS 7 maps showing the real
structures of Empire State Building (left) and
Chrysler Building (right) in New York
Developer(s)

Apple Inc.

Initial release

June 29, 2007 (powered
by Google Maps)

Stable release

iOS 7.0.3 / October 22,
2013 (powered by Apple)

Development status

Active

Operating system

iOS

Available in

English, French, German

Type

Web mapping

License

Proprietary

Maps

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Developer(s)

Country

Cities

Australia Melbourne, Sydney
Canada

Calgary, Montreal, Surrey,
Toronto, Vancouver

Denmark Copenhagen, Roskilde
Finland

Helsinki

France

Bordeaux, Lyon, Marseille, Paris,
Saint-Étienne

Germany Berlin, Cologne, Munich
Gibraltar Gibraltar
Holy See

Apple Inc.

Initial release

October 22, 2013

Stable release

1.0

Development status Active
Operating system

OS X 10.9 or later

Platform

OS X

License

Freeware

Website

www.apple.com/osx/whatsnew/features.html
(http://www.apple.com/osx/whats
-new/features.html)

Vatican City

Italy

Ancona, Milan, Perugia, Rome,

Ireland

Dublin

New
Zealand

Auckland, Christchurch

South
Africa

Cape Town

Spain

Algeciras, Alicante, Barcelona,
Madrid, Seville, Valencia

Sweden

Linköping, Stockholm

United
Kingdom

Birmingham, Glasgow, Leeds,
London, Manchester,
Wolverhampton

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

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Maps (application) - Wikipedia, the free encyclopedia

Country

State

Page 3 of 7

Cities

Arizona
California

Anaheim, Bakersfield, Fresno, Long Beach, Los Angeles, Modesto,
Oakland, Riverside, Sacramento, San Diego, San Francisco, San Jose,
Santa Ana, Stockton

Colorado

Denver

Florida

Miami

Georgia

Atlanta

Hawaii

Honolulu

Illinois

Chicago

Indiana

Indianapolis

Louisiana

New Orleans

Maine
United
States

Phoenix

Portland

Maryland

Baltimore

Massachusetts Boston
Minnesota

Minneapolis, Saint Paul

Nevada

Las Vegas

New York

Albany, Buffalo, New York City, Schnectady

Ohio

Cleveland

Oklahoma

Tulsa

Oregon

Portland, Salem

Pennsylvania Philadelphia
Rhode Island Providence
Tennessee

Memphis, Nashville

Texas

Arlington, Austin, Dallas, Fort Worth, Houston, San Antonio

Washington

Seattle, Tacoma

Wisconsin

Green Bay, Milwaukee

Non-populated landmarks and areas in photorealistic 3D:
Landmark

Country

District

Hoover Dam

United States Arizona/Nevada

Mount Rushmore

United States South Dakota

Criticism

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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.
Upon the release of the new version on September 19, 2012,[8]
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.[9] The app was criticized for its lack
Image comparing the version offered
of certain features contained in Google Maps, including Street
by iOS's Maps (left) and the offering
View and transit directions.[10] Users complained about the errors
of maps by Google Maps (right)
[11]
it contained. This included showing the wrong location of the
Apple Store in Sydney, Australia,[12] 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.[13] 3D views appearing in Maps were also distorted in some cases
though still better than in Google's 3D maps at the same locations, with iconic constructions like the
Brooklyn Bridge seeming to be collapsed or impossibly built.[14] In response to the criticism, Apple
issued a statement, saying the company is "continuously improving" Maps and they "appreciate all of
the customer feedback."[15] On September 28, 2012, Apple CEO Tim Cook posted a letter on the Apple
website apologizing for Maps and suggesting that iOS 6 users use third party map apps or websites
while Apple works to improve Maps.[16]
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 removed from his position.[17][18]
According to Adam Lashinsky of Fortune, Forstall sealed his fate when he refused to sign the apology
for Maps.[19]
In December 2012, Victoria Police in Australia advised travellers against using the application to get
directions to the remote town of Mildura. The app placed Mildura in the middle of Murray-Sunset
National Park, 70 km (43 mi) from its correct location. Police noted that several motorists required
rescuing after following incorrect directions off the highway into the park. They called this a "potentially
life threatening issue," since the park has no water supply of its own and temperatures can get as high as
46 °C (115 °F) in the summer.[20] Apple made efforts to correct this before any actual deaths were
reported. An update released on December 11, 2012, corrected the location of Mildura for some but not
all possible routes.[21][22] According to The Register, the problem was likely due to a listing in the
Gazetteer of Australia for the Rural City of Mildura, the LGA that includes Mildura. The geographic
center for that LGA is located in Murray-Sunset Park, which covers almost one-third of its area.[23]
Samsung used the reports of stranded users in a marketing event in Sydney for their own products.[24]
The Victoria Country Fire Authority blamed Apple for "dangerous deficiencies" after the iOS6 version
of the map service caused inaccuracies in the Authority's pre-existing bushfire alert app.[25]
Apple Maps was named one of the Top 10 technology 'fails' of 2012 by CNN in December 2012.[26]
In September 2013, it was reported that Apple's Maps app was directing drivers heading to Fairbanks
International Airport in Fairbanks, Alaska to drive onto an airport taxiway located directly across from
the runway, which is used by aircraft on a regular basis.[27]

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Since then, Apple's Maps has improved greatly and is now the preferred iOS map app in the US, beating
out Google Maps by a substantial margin. As of November 2013, US iPhone users who used Apple's
[28]
Maps outnumber Google's maps app by 35 million to 6 million.

Competitors
An iPhone version of Google Maps returned to the iOS platform on December 13, 2012 as a standalone
application released by Google, rather than as the default map feature on the iOS platform. Currently it
is not possible to change the default mapping app from Apple Maps except via jailbreaking.[29] The new
Google app still lagged in a few features available on Google's own Android platform, but Google Maps
on iOS has been tremendously successful.[30][31] The redesigned Google Maps has been praised for being
both aesthetically pleasing and highly functional.[31][32] On July 16, 2013, a new, redesigned version of
Google Maps was released on the iOS platform with optimization for the iPad.[33]

Updates
Since the launch of the iOS Maps software and its aforementioned controversies, Apple executives have
promised that improvements will come to the Maps application. On an Apple earnings call, Apple CFO
Peter Oppenheimer stated that Apple "has made a number of improvements to Maps" and that the
company will "work non-stop" in order to fix the remaining issues.[34] Apple CEO Tim Cook also said
publicly that Apple is "putting the weight of the company" behind improvements to the iPhone, iPad,
and iPod touch Maps application. In an interview with Bloomberg, he said that Apple has a big plan to
squash the bugs.[35] On March 19, 2013, Apple released iOS 6.1.3 that included several iOS Maps fixes
specific to Japan.[36] The application also received improvements with the launch of iOS 7, which was
released on September 18, 2013.

References
1. ^ Pogue, David (June 27, 2007). "The iPhone Matches Most of Its
Hype" (http://www.nytimes.com/2007/06/27/technology/circuits/27pogue.html?pagewanted=all). The New
York Times. Retrieved September 26, 2012.
2. ^ "Acknowledgements" (http://gspsa21.ls.apple.com/html/attribution.html). Apple Inc. November 7, 2012.
Retrieved December 16, 2012.
3. ^ Markowitz, Eric (June 12, 2012). "Meet 3 Start-ups Behind Apple's New Maps" (http://www.inc.com/ericmarkowitz/start-ups-behind-the-new-apple-maps.html). Retrieved December 16, 2012.
4. ^ Chen, Brian X. & Wingfield, Nick (September 11, 2012). "Apple Updates Laptops and Mobile
Software" (http://www.nytimes.com/2012/06/12/technology/apple-overhauls-mac-computers-and-introducesnew-mobile-operating-system.html). The New York Times. Retrieved September 23, 2012.
5. ^ "Apple Built Special Version of Maps for China" (http://blogs.wsj.com/chinarealtime/2012/09/26/applebuilt-special-version-of-maps-for-china). China Real Time Report. Wall Street Journal. September 26, 2012.
Retrieved November 16, 2012.
6. ^ "Maps, iBooks, iCloud Keychain coming to OS X
Mavericks" (http://appleinsider.com/articles/13/06/10/maps-ibooks-icloud-keychain-coming-to-os-xmavericks). AppleInsider. June 10, 2013.
7. ^ "OS X Mavericks - Do even more with new apps and new
features." (http://www.apple.com/osx/preview/#maps). Apple Inc.

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8. ^ Donna Tam (September 19, 2012). "Apple's iOS 6 release date: Start your downloads on Sept.
19" (http://news.cnet.com/8301-13579_3-57510600-37/apples-ios-6-release-date-start-your-downloads-onsept-19). CNET. Retrieved September 19, 2012.
9. ^ Allsopp, Ashleigh (September 1, 2012). "Apple's iOS 6 Maps app fails to impress, users want Google
Maps back" (http://www.macworld.co.uk/ipad-iphone/news/?newsid=3382583&pagtype=allchandate).
Macworld. Retrieved September 21, 2012.
10. ^ Fottrell, Quentin (September 21, 2012). "In Apple-Google maps war, consumers
lose" (http://articles.marketwatch.com/2012-09-21/finance/33996768_1_google-maps-apple-patents-appleproducts). MarketWatch. Retrieved September 23, 2012.
11. ^ "Apple's new map system riddled with errors" (http://www.emirates247.com/business/technology/apple-snew-map-system-riddled-with-errors-2012-09-20-1.476398). Emirates 24/7. Agence France-Presse.
September 20, 2012. Retrieved September 21, 2012.
12. ^ "Six maps get Apple store, Sydney location
wrong" (http://www.theregister.co.uk/2012/09/23/ios_6_maps_get_apple_store_sydney_location_wrong).
The Register. Retrieved September 23, 2012.
13. ^ "17 People Apple Maps Has Already Horribly Misled" (http://gizmodo.com/5944897/17-people-applemaps-has-already-horribly-misled). Gizmodo. September 20, 2012. Retrieved September 23, 2012.
14. ^ Levine, Eitan (September 2012). "Apple iOS 6 Maps Fails" (http://www.heavy.com/news/2012/09/appleios-6-maps-fails). Heavy. Retrieved June 6, 2013.
15. ^ Wingfield, Nick (September 20, 2012). "Apple on Its iOS 6 Maps: Things Can Only Get
Better" (http://bits.blogs.nytimes.com/2012/09/20/apple-on-its-ios-6-maps-things-can-only-get-better). The
New York Times. Retrieved September 25, 2012.
16. ^ Cook, Tim (September 28, 2012). "A letter from Tim Cook on Maps" (http://www.apple.com/letter-fromtim-cook-on-maps). Apple Inc. Retrieved September 28, 2012.
17. ^ Rodriguez, Salvador (October 29, 2012). "Apple ousts Scott Forstall, executive in charge of Maps and
Siri" (http://discussions.latimes.com/20/lanews/la-fi-tn-apple-maps-siri-forstall-out-20121029/10). 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."
18. ^ "Apple Announces Changes to Increase Collaboration Across Hardware, Software &
Services" (http://www.apple.com/pr/library/2012/10/29Apple-Announces-Changes-to-Increase-Collaboration
-Across-Hardware-Software-Services.html). Apple Inc. October 29, 2012. Retrieved October 29, 2012.
19. ^ Lashinsky, Adam (October 29, 2012). "Inside Apple's major
shakeup" (http://tech.fortune.cnn.com/2012/10/29/inside-apples-major-shakeup). Fortune. Retrieved
December 10, 2012.
20. ^ "Police concerned with Apple iOS 6 mapping system" (http://vicpolicenews.com.au/more-news/11081police-concerned-with-apple-ios-6-mapping-system.html). Victoria Police. December 10, 2012. Retrieved
December 10, 2012.
21. ^ Stuart Rintoul (December 11, 2012). "Victoria police say Apple has half-fixed troubled Maps
app" (http://www.theaustralian.com.au/australian-it/victoria-police-say-apple-has-half-fixed-troubled-mapsapp/story-e6frgakx-1226534336744). The Australian. Retrieved December 12, 2012.
22. ^ "The best of the worst in Apple Maps" (http://www.smh.com.au/photogallery/technology/technologynews/the-best-of-the-worst-in-apple-maps-20120921-26aop.html). Retrieved December 17, 2012.
23. ^ Chirgwin, Richard. Apple updates maps to remove Australia's ghost-city in the desert
(http://www.theregister.co.uk/2012/12/10/apple_maps_ghost_mildura). The Register, December 10, 2012.
24. ^ Lowensohn, John. Samsung knocks Apple Maps in Sydney marketing stunt (http://news.cnet.com/830113579_3-57558757-37/samsung-knocks-apple-maps-in-sydney-marketing-stunt). CNET, December 12,
2012.
25. ^ Moses, Asher (February 12, 2013). "Apple Maps blamed for 'dangerous' inaccuracies in bushfire
app" (http://www.smh.com.au/digital-life/smartphone-apps/apple-maps-blamed-for-dangerous-inaccuraciesin-bushfire-app-20130212-2ea9w.html). The Sydney Morning Herald. Retrieved September 11, 2013.
26. ^ The top 10 tech 'fails' of 2012 (http://www.cnn.com/2012/12/28/tech/web/tech-fails-2012/index.html?
hpt=hp_bn5)

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27. ^ Cole, Dermot (September 24, 2013). "iPhone map app directs Fairbanks drivers onto airport
taxiway" (http://www.alaskadispatch.com/article/20130924/iphone-map-app-directs-fairbanks-drivers-airport
-taxiway). Alaska Dispatch. Retrieved September 26, 2013.
28. ^ Dockterman, Eliana (November 12, 2013). "Read more: Failing Up: Apple Maps Takes a Bite Out of Rival
Google App" (http://techland.time.com/2013/11/12/failing-up-apple-maps-takes-a-bite-out-of-google/).
Time. Retrieved September 26, 2013.
29. ^ "Google maps app is BACK on iPhones, fanbois spared
death." (http://www.theregister.co.uk/2012/12/13/google_maps_back_to_iphone). The Register. December
13, 2012. Retrieved December 16, 2012.
30. ^ "Google Maps app back on
iPhones" (http://www.aljazeera.com/news/americas/2012/12/201212138032433408.html). Al Jazeera.
December 13, 2012. Retrieved December 13, 2012.
31. ^ a b "How is Apple Maps doing?" (http://tech.fortune.cnn.com/2013/05/29/how-is-apple-maps-doing).
Fortune, CNN. May 29, 2013. Retrieved June 6, 2013.
32. ^ "Google's gorgeous new maps" (http://money.cnn.com/gallery/magazines/fortune/2013/05/28/googlesgorgeous-new-maps.fortune). Al Jazeera. December 13, 2012. Retrieved December 13, 2012.
33. ^ "The new Google Maps app for iPhone and iPad is here" (http://google-latlong.blogspot.ch/2013/07/thenew-google-maps-app-for-iphone-and.html). Google. July 16, 2013. Retrieved August 5, 2013.
34. ^ Ingraham, Nathan. "Apple has made 'a number of improvements' to Maps, will 'work non-stop' to keep
fixing issues" (http://www.theverge.com/2012/10/25/3555616/apple-maps-improvements-work-non-stop).
The Verge. Retrieved February 7, 2013.
35. ^ Tyrangiel, Josh. "Tim Cook's Freshman Year: The Apple CEO
Speaks" (http://www.businessweek.com/articles/2012-12-06/tim-cooks-freshman-year-the-apple-ceospeaks). Bloomberg LP. Retrieved February 7, 2013.
36. ^ Gurman, Mark. "Apple releases iOS 6.1.1 beta to developers with major enhancements to Maps for
Japan" (http://9to5mac.com/2013/02/06/apple-releases-ios-6-1-1-beta-to-developers-for-iphone-ipad-andipod-touch). 9to5Mac. Retrieved February 7, 2013.

External links
■ Apple Maps (http://www.apple.com/ios/maps) – official site
Retrieved from "http://en.wikipedia.org/w/index.php?title=Maps_(application)&oldid=597005757"
Categories: Apple Inc. software Internet properties established in 2012 IOS software
Mobile route-planning software Route planning software Web mapping
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