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)

Download PDF
1 2 3 4 5 6 7 8 9 10 PAUL J. HALL (SBN 066084) paul.hall@dlapiper.com ALEC CIERNY (SBN 275230) alec.cierny@dlapiper.com DLA PIPER LLP (US) 555 Mission Street, Suite 2400 San Francisco, CA 94105 Tel: (415) 836-2500 Fax: (415) 836-2501 JOSEPH COLLINS (Admitted Pro Hac Vice) joseph.collins@dlapiper.com DLA PIPER LLP (US) 203 North LaSalle Street, Suite 1900 Chicago, IL 60601-1293 Tel: (312) 368-4000 Fax: (312) 236-7516 Attorneys for Defendant Apple Inc. 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 16 17 18 19 NANCY ROMINE MINKLER, Individually and on Behalf of All Others Similarly Situated, Plaintiffs, v. Defendant. 21 22 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., 20 CASE NO. 5:13-cv-05332-EJD DATE: JULY 18, 2014 TIME: 9:00 A.M. COURTROOM: 4 23 24 25 26 27 28 DLA P IPER LLP (US) SA N FRA NCI S CO -1- EAST\71726925.1 CIERNY DECL. ISO DEFENDANT APPLE INC.’S MOTION TO DISMISS COMPLAINT CASE NO. 5:13-CV-05332-EJD 1 2 3 4 5 6 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. 7 8 9 10 11 12 13 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. 14 /s/ Alec Cierny ALEC CIERNY 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DLA P IPER LLP (US) SA N FRA NCI S CO -2- 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 2/26/2014 Maps (application) - Wikipedia, the free encyclopedia Page 2 of 7 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) 2/26/2014 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 http://en.wikipedia.org/wiki/Maps_(application) 2/26/2014 Maps (application) - Wikipedia, the free encyclopedia Page 4 of 7 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] http://en.wikipedia.org/wiki/Maps_(application) 2/26/2014 Maps (application) - Wikipedia, the free encyclopedia Page 5 of 7 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. http://en.wikipedia.org/wiki/Maps_(application) 2/26/2014 Maps (application) - Wikipedia, the free encyclopedia Page 6 of 7 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) http://en.wikipedia.org/wiki/Maps_(application) 2/26/2014 Maps (application) - Wikipedia, the free encyclopedia Page 7 of 7 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 ■ This page was last modified on 25 February 2014 at 01:41. ■ Text is available under the Creative Commons Attribution-ShareAlike License; additional terms may apply. By using this site, you agree to the Terms of Use and Privacy Policy. Wikipedia® is a registered trademark of the Wikimedia Foundation, Inc., a non-profit organization. http://en.wikipedia.org/wiki/Maps_(application) 2/26/2014

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?