Moore v. Apple Inc.

Filing 1

COMPLAINT CLASS ACTION COMPLAINT against Apple Inc. ( Filing fee $ 400, receipt number 0971-8621066.). Filed byAdrienne Moore. (Attachments: # 1 Exhibit Exhibit 1 to Class Action Complaint, # 2 Exhibit Exhibit 2 to Class Action Complaint, # 3 Civil Cover Sheet)(Katriel, Roy) (Filed on 5/15/2014)

1 Roy A. Katriel (SBN 265463)
THE KATRIEL LAW FIRM
2 4225 Executive Square, Suite 600
La Jolla, California 92037
3 Telephone: [phone]
Facsimile: [phone]
4 e-mail: [e-mail]
5 Counsel for Plaintiff Adrienne Moore
6
7
8

UNITED STATES DISTRICT COURT

9

NORTHERN DISTRICT OF CALIFORNIA

10
11
12 ADRIENNE MOORE, On Behalf of Herself and
All Others Similarly Situated,
13
Plaintiff,
14
v.
15
APPLE INC.
16
Defendant.
17

Case No.______________________
CLASS ACTION COMPLAINT
Jury Trial Demanded

18
19
20
21
22
23
24
25
26

NATURE OF THE ACTION
1.

Plaintiff Adrienne Moore (“Moore” or “Plaintiff”) hereby brings this action on

behalf of herself and all other similarly situated persons within the United States who obtained
wireless cellular service on an Apple iPhone or iPad device that was equipped with Apple’s
iMessage service, and subsequently replaced that device (on which they were obtaining their
wireless cellular service) with a non-Apple device instead. When Plaintiff and the putative class
members subscribed to cellular service through these Apple iPhone or iPad devices, they had, as
part of their cellular service contract and Apple device ownership, the ability to send and receive

27
28

Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
1

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

text messages. To accomplish this task, these Apple device users employed an Apple service and
application that were part of Apple’s software operating system, and that are known respectively
as iMessage and Messages. Unbeknownst to Plaintiff and the putative class members, however,
once they switched from an Apple iPhone or iPad to a non-Apple device for their wireless service
needs, Apple’s iMessages and Message service and application still retained text messages that
were directed at these persons from other Apple users, and failed to deliver these text messages to
the putative class members as long as these putative class members continued using a non-Apple
device. In this manner, Apple tortiously interfered with the contract for cellular service between
these putative class members and their cellular telephone carrier in that Apple’s actions prevented
the subscribers from receiving all of their text messages, as they were entitled to obtain through
their cellular wireless service contracts. Further, Apple failed to properly disclose to Plaintiff and
the putative class members, at the time that they owned their Apple iPhone or iPad devices (or
anytime thereafter) that, should they switch away from an Apple device to a non-Apple device,
Apple’s iMessage and Messages service and application would act to prevent these persons from
receiving all their text messages on the non-Apple device that these class members used to replace
their Apple iPhone or iPad devices. Through this material omission, Apple violated the California
Legal Remedies Act. The foregoing conduct also amounts to a violation of California’s Unfair
Competition Law.

19
20
21
22
23

INTRADISTRICT ASSIGNMENT
2.

Pursuant to Local Civil Rules 3-2(e) and 3-5(c), Plaintiff maintains that Intradistrict

Assignment of this action to the Court’s San Jose Division is appropriate because “a substantial
part of the events or omissions which give rise to the claim occurred” (Civil L.R. 3-2(c)) in
Apple’s Cupertino headquarters in Santa Clara County.

24
25
26
27

JURISDICTION AND VENUE
3.

This Court has subject-matter jurisdiction over this action pursuant to the Class

Action Fairness Act, 28 U.S.C. § 1332(d) because Plaintiff’s Class Action Complaint pleads a
cause of action on behalf of a nationwide class whose members are of diverse citizenship than

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
2

1
2
3
4
5
6
7
8
9
10

Apple’s California citizenship, and the amount in controversy, exclusive of interest and costs,
exceeds $ 5 million.
4.

Venue is proper in this judicial district because Apple is headquartered within this

judicial district at 1 Infinite Loop in Cupertino, California 95014. Upon information and belief,
the marketing and disclosure decisions about Apple’s iMessage service were made from within
Apple’s headquarters. Venue in this judicial district is, therefore, proper pursuant to 28 U.S.C. §§
1391(b)(1) and 1391(b)(2). Through its corporate and retail presence in California, as well as its
significant sales of Apple devices within California (including the very devices at issue in this
Class Action Complaint), Apple is also amenable to personal jurisdiction in this State and judicial
district.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

PARTIES
5.

Plaintiff Adrienne Moore is a resident of California. For years pre-dating the filing

of this action, Plaintiff was an owner of an iPhone 4 device and subscribed to Verizon Wireless for
her cellular telephone needs. As part of her cellular service, she was entitled to obtain, inter alia,
voice telephone calls and text messages in exchange for a monthly fee. Plaintiff’s iPhone 4
device operated Apple’s OS software operating system that included, a messenger service
developed by Apple called iMessage. Within iMessage, a default Apple client application known
as Messages exists that allows users to send and receive texts, documents, photos, videos, contact
information, and group messages over Wi-Fi, 2G, 3G, or LTE networks to other Apple iOs or OS
X users, thus providing an alternative to standard SMS/MMS text messaging for most users with
devices running Apple’s iOS 5 or later. During the time that Plaintiff was a Verizon Wireless
subscriber for her Apple iPhone 4, Apple prompted her to update her Apple software operating
system. As part of one of those updates, her iPhone 4 began using by default the iMessage
service to route text messages from and to her through Apple’s Messages application when those
text messages involved other Apple device users that had the Apple iMessage service (i.e., all
other Apple devices running Apple iOS 5 or later). Unbeknownst and undisclosed to Plaintiff,
however, once she decided to replace her Apple iPhone 4 device with a Samsung Galaxy S5, as

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

she did on or about April 16, 2014, Apple’s iMessage service and Message application still acted
so as to not deliver incoming text messages sent to her by Apple device users to her same cellular
telephone number, but that was now associated with a non-Apple device (i.e., her Samsung S5
device). Put simply, Apple’s iMessage service and Messages application penalizes those Apple
device owners who deign to switch away from Apple to other non-Apple wireless cellular devices.
These former Apple device owners are penalized and injured by having Apple’s iMessage service
and Messages application fail to deliver text messages sent from Apple devices to the new nonApple devices of these former Apple device users. This was the exact fate of Plaintiff, who, solely
as a result of Apple’s iMessage’s and Messages’ doing, has lost or failed to received countless text
messages sent to her from Apple devices ever since she switched away from an Apple iPhone 4 to
a newer Samsung S5 phone.
6.

Defendant Apple Inc. is a corporation organized under the laws of the State of

California, and having its principal place of business at 1 Infinite Loop in Cupertino, California
95014. Apple is one of the world’s largest and most popular maker of, inter alia, wireless devices,
such as the various versions of the iPhone and iPad. These devices are operated by Apple’s
software operating service, commonly abbreviated as iOS (which may be followed by a number or
roman numeral to designate the version of the software). Starting with the iOS 5 update to
Apple’s software operating system on or about October 12, 2011, Apple introduced its iMessage
service and Messages client application. Apple’s current CEO, Tim Cook, has previously touted
that Apple’s iMessage delivers 28,000 messages per second.

21
22
23
24

TEXT MESSAGING, APPLE’S iMESSAGES, AND APPLE’S WRONGFUL CONDUCT
DIRECTED AT THOSE SUBSCRIBERS WHO CHOOSE TO REPLACE THEIR APPLE
DEVICES WITH NON-APPLE DEVICES.
7.

This action concerns the practice of text messaging, also commonly referred to as

25 texting. Text messaging is the act of composing and sending a brief, electronic message between
26 two or more mobile phones, or fixed or portable devices over a phone network. The term
27 originally referred to messages sent using the Short Message Service (“SMS”). It has grown to
28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

include messages containing image, video, and sound content (known as MMS messages). The
sender of a text message is known as a texter. Today, text messaging is the most widely used
mobile data service, with 74% of all mobile phone users worldwide, or 2.4 billion out of 3.3
billion phone subscribers.
8.

Traditionally, text messages were and are sent between the texter and the recipient

through a cellular network. After the texter composes the text message and hits the “Send” or
similar button on his wireless device, the text message is transmitted in SMS format through the
cellular network to an interim facility known as the SMS Center. From there, the SMS
transmission is routed to a transmission tower of the network. The network’s transmission tower,
in turn, sends the message to the recipient’s wireless device through that device’s control channel.
At that point, the recipient receives notification on his device of the actual SMS (or MMS) text
message.
9.

Given the popularity of text messaging, today, wireless service providers, like

Verizon Wireless, AT&T, Sprint, T-Mobile, and others, provide their users with the facility to
send and receive text messages (which, as detailed in paragraph 8 supra, make use of the carrier’s
wireless network for transmission of these text messages).
10.

Part of the contractual relationship, therefore, between Plaintiff and other putative

class members and their respective wireless service providers (Verizon Wireless, in the case of
Plaintiff) is the subscriber’s ability to send and receive text messages as part of their subscription.
11.

On or about October 12, 2011, Apple released its OS 5 update to the software

powering Apple wireless devices, such as iPhones and iPads. As part of that updated, Apple
included its iMessage service, which contained Apple’s Messages client application. As part of
that and subsequent Apple software versions, Apple’s software on Apple iPhone and iPad wireless
devices would employ iMessage and Messages, instead of the traditional SMS network route, to
send text messages between users of Apple wireless devices who had an enbabled iMessage
service on their device.
12.

As a result of Apple’s software upgrade, if a user’s iPhone or iPad is running iOS

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

5 or greater, the Message messaging application will send text messages as an iMessage instead of
the usual text message when the text message is being sent between users who have the Apple
iMessage service on their devices. This means that if one is sending text messages with another
iOS 5 user, there is no SMS charge associated with the messaging. It is merely treated as an
additional data transfer.
13.

The undisclosed drawback that forms the gravamen of this action concerns the

manner in which Apple’s iMessage and Messages act once an iPhone or iPad user switches their
wireless telephone number to a non-Apple device, as Plaintiff did recently. Once that occurs, the
former Apple device user, who now uses a non-Apple device, is unable to receive text messages
sent to her by users of Apple devices that employ iMessage and Messages (i.e., all Apple wireless
devices operating OS 5 or more recent software versions).
14.

Due to an undisclosed feature in Apple’s iMessage and Messages service and

application, the Apple Message application does not recognize that the same telephone number of
the former Apple device user (who, herself, was previously receiving text messages through
iMessage) is no longer using an Apple device and hence is no longer using iMessage or Messages.
Thus, when a text message is sent from an Apple device user to a person whose telephone number
used to be associated with an Apple device but is now used on a non-Apple telephone, the
message is not delivered to the non-Apple device user on her new non-Apple device. Worse yet,
this person receives no notification whatsoever that a text message directed to her was not
delivered.
15.

The effect is readily apparent. Solely as a result of Apple’s doing, Plaintiff, like

other wireless carrier subscribers who replace their Apple devices with non-Apple wireless
devices, are penalized and unable to obtain the full benefits of their wireless service contracts
because Apple’s iMessage and Messages service and application prevent these users from
receiving the text messages that they are entitled to receive as part of their wireless service
contracts with their wireless providers (Verizon Wireless, in the case of Plaintiff).
16.

Apple knew but never disclosed that its iMessage service and Message application

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
6

1
2
3
4
5
6
7
8
9

would prevent Apple device owners from receiving text messages sent to them from other Apple
users once these Apple device owners replaced their devices with non-Apple wireless devices. To
the contrary, Apple touted the superior attributes and enhanced benefits of the iMessages and
Message service and application while omitting any mention of this serious consequence. Had
Plaintiff and the class members been informed by Apple that iMessage would work in such a
fashion so as to prevent them from receiving text messages, once they switched their Apple
devices to non-Apple devices, Plaintiff and the putative class members would not have
downloaded the iMessage and Messages service and application, or would not have purchased an
iPhone or other Apple device in the first instance.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

PLAINTIFF’S OWN EXPERIENCED WITH HAVING APPLE PREVENT HER FROM
RECEIVING HER TEXT MESSAGES ONCE SHE REPLACED HER iPHONE WITH A
NON-APPLE DEVICE
17.

Plaintiff is, and at all times relevant to this Class Action Complaint was, a

subscriber of Verizon Wireless service for her wireless voice and data needs. Up until
approximately April 16, 2014, Plaintiff owned and used an iPhone 4 as her wireless device (whose
wireless service was provided by Verizon Wireless). As part of her wireless service, Plaintiff
routinely sent and received text messages, including text messages from other Apple iPhone users.
Her iPhone operating system was loaded with Apple’s iMessage and Messages service and
application, which her iPhone used to send and receive text messages.
18.

On or about April 2014, Plaintiff switched from her Apple iPhone to a non-Apple

Android wireless telephone (a Samsung S5), but kept her same cellular telephone number.
Shortly after the switch away from an iPhone, Plaintiff began noticing that she was not receiving
text messages that she had been expecting to receive from texters who were using Apple iPhone or
iPad devices.
19.

Upon discovering this problem with receipt of text messages, Plaintiff

initially contacted Verizon Wireless. She was told that all she needed to do was to “turn off”
iMessage in her old iPhone. Plaintiff did so, but this did not resolve the problem because while

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
7

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

she now receives text messages sent from some iPhones, she still fails to receive text messages
that are sent to her from other iPhones.
20.

Plaintiff contacted Verizon Wireless again. The personnel at Verizon Wireless

informed Plaintiff that this has been an issue when people switch from an Apple iPhone or other
Apple device to a non-Apple phone. Verizon Wireless attempted to do some more
troubleshooting with Plaintiff, but this was to no avail, as her problem persisted. Verizon Wireless
patched Plaintiff to Apple for assistance.
21.

Apple personnel informed Plaintiff that even though she had turned iMessage off in

her old iPhone she may still not be receiving all her text messages because some texters using
Apple devices may not be using the latest Apple iOS version. Rather than Apple coming up with
a solution to a problem created by Apple, Apple’s representative instead suggested to Plaintiff that
Plaintiff get her text message senders to update their Apple iOS to the latest version, or have them
delete and then re-add Plaintiff as their contact, or have Plaintiff and these unsuccessful Apple
texters start a new text conversation with Plaintiff.
22.

Aside from the fact that Plaintiff should not be tasked with the mission of coming

up with fixes to a flaw in Apple’s own service and application, the suggestions proffered by
Apple’s personnel proved wholly unworkable and did not solve the issue. First, precisely because
the texts are not being delivered to Plaintiff, it is impossible for Plaintiff to identify ahead of time
which persons are sending her undelivered text messages from Apple devices that are not running
the latest Apple iOS (and, even if she could, many Apple users may be unwilling to update their
iOS to the latest version). The other two “solutions” suggested by Apple—that she be deleted and
then re-added as a contact, or that a new text conversation be started with her, were tried by
Plaintiff and some of her unsuccessful Apple texters, but that did not solve the problem (these
Apple “suggestions” also suffer from the same flaw that it is impossible for Plaintiff to discern
ahead of time all people who are attempting to send her text messages precisely because these text
messages are not being delivered to Plaintiff as a result of the flaw in iMessage and Messages).
23.

The unfortunate and unacceptable state of affairs, therefore, is that Plaintiff,

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
8

1
2
3
4

as well as the other putative class members, now have text messages that are routinely not
delivered to them (and neither Plaintiff nor the putative class members are notified of the failed
delivery attempt) solely because they deigned to use Apple’s iMessage and Message service and
application, but ultimately chose to replace their Apple devices with a non-Apple phone or device.

5
6
7

THE EXPERIENCES OF THE PUBLIC AT LARGE AND APPLE’S INDIFFERENCE TO
THIS OUTCRY
24.

Plaintiff’s experiences are bad enough to warrant action. Unfortunately,

8
Plaintiff’s experience is neither isolated nor anomalous. Across the country, countless of similarly
9
situated former Apple device owners, who have since switched away from Apple to a non-Apple
10
device, have experienced the same fate of undelivered text messages.
11
25.

So pervasive is the problem that a number of public internet fora have been

12
launched where former Apple device owners have posted their experiences and complaints online
13
in the hope of getting the matter resolved. To date, these complaints have fallen on deaf ears, as
14
Apple has failed to come up with a solution to the undelivered text message problem of Apple’s
15
own making.
16
26.

Further evidencing the pervasiveness of the problem, on May 14, 2014,

17
Business
18
Insider published a news article authored by Jim Edwards entitled, “An Apple Employee Admits
19
That iPhones Often Won’t Deliver Texts If You Switch To Android.” A copy of the news article
20
was publicly posted on the Yahoo! News webpage and is viewable at
21
http://finance.yahoo.com/news/apple-employee-admits-iphones-often-140622623.html (last
22
visited May 14, 2014). A copy of the article is also attached hereto as Exhibit 1 to this Class
23
Action Complaint. The article details the nature of the problem, Apple’s persistent denial or
24
indifference to it, and Apple’s belated admission that there is a problem but highlights Apple’s
25
inability or unwillingness to solve it. To quote from the news article:
26
27

For years, Apple has said very little about persistent rumors that its iPhone

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
9

text messaging system in some way discriminates against Android users,
either by delivering messages to them late or not delivering them at all.

1
2

Now an Apple customer support employee has admitted to Lifehacker's
Adam Pash that, in fact, "a lot" of users have this problem: If you switch
from an iPhone to an Android, iMessage won’t deliver texts from iPhone
users to your new Android phone.

3
4

There is no fix in sight, Pash says he was told. (At Business Insider, I've
had a version of this problem firsthand: My iPhone colleagues get my
texts immediately; those on Android seem to get them later, up to a few
minutes behind.)

5
6
7

....

8
Apple's customer support was initially useless when Pash called for help.
Pash writes:

9
10
11

Apple Support: “Can you try deleting the contact from your new iPhone
and re-adding it?”

12

Me: “I can’t tell everyone I know to delete and re-add me as a contact.”

13

Eventually, the service rep admitted there was a problem. Pash writes:

14
15



This is a problem a lot of people are facing.



The engineering team is working on it but is apparently clueless as to how
to fix it.

16
17
18
19
20
21
22
23
24
25
26
27



There are no reliable solutions right now — for some people the standard
fixes work immediately; many others are in my boat.
This is, apparently, a key admission from Apple. Previously the company
had advised people to actively switch off iMessage before disposing of
their old iPhone in favor of an Android. Its help page hints at how long the
Android text issue lasts, too:
If you want to transfer your SIM card or phone number to a device that
doesn't support iMessage Go to Settings > Messages and turn off iMessage
if you plan to transfer your SIM card or phone number from an iPhone to a
device that doesn't support iMessage. If you don't, other iOS devices might
continue to try to send you messages using iMessage, instead of using
SMS or MMS, for up to 45 days.
We asked Apple for further comment but did not immediately get a
response.

Ex. 1 hereto at 1-2.

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
10

1
2
3
4
5
6
7
8
9
10
11
12
13

27.

The Business Insider article references and quotes an Apple Help Page on

Apple’s website. A copy of that Apple Help page is attached hereto as Exhibit 2. In that Help
Page on Apple’s website, which was last modified only on March 2014, Apple instructs people
who plan on switching away from an Apple device to a non-Apple cellular phone that if they do
not turn off iMessage, “other iOs devices might continue to try to send you messages using
iMessage, instead od using SMS or MMS, for up to 45 days.” Ex. 2 hereto at 2 (emphasis added).
Not only does this Help page acknowledge the existence of the issue being complained about by
Plaintiff and the putative class members, but it also provides erroneous information. Specifically,
the Apple Help page suggests that turning off iMessage in the old iPhone device that the user is
switching away from will prevent text message misdelivery from occurring, but this is not the case.
Plaintiff, in fact, turned off her iMessage service on her old iPhone but, nevertheless, continues to
have text messages sent to her from other Apple users not be delivered to her new non-Apple
device.

14
15
16
17
18
19
20
21
22
23
24
25
26
27

CLASS ACTION ALLEGATIONS
28.

Pursuant to Federal Rule of Civil Procedure 23, Plaintiff seeks to represent a class

of all persons in the United States who, during the Class Period, owned an Apple device operated
by iOS 5 or more recent software operating system and who switched their wireless service to a
non-Apple device. Expressly excluded from the class definition are all attorneys, judicial officers,
and their staff working or assigned to this case, as well as all employees and officers of Defendant.
Plaintiff reserves the right to amend this class definition as case circumstances warrant.
29.

The members in the proposed class are so numerous that individual joinder of all

members is impracticable, and the disposition of the claims of all class members in a single action
will provide substantial benefits to the parties and Court. This is so because Apple wireless
devices equipped with iMessages and Message service and application number in the millions, and
each month, a significant number of these Apple device owners switch their wireless service away
from their Apple devices to a non-Apple wireless device.

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
11

1
2
3

30.

over any such questions affecting only individual class members. Among these common,
predominating questions are:

4

a. Whether Apple’s iMessage and Messages service and client application contain

5

a feature or flaw that causes text messages sent from iPhone users to not be

6

delivered to class members who switched their wireless service away from an

7

iPhone or iPad to a non-Apple device;

8

b. Whether Apple’s employ of its iMessage and Messages service and client

9

application in such a manner so as not to deliver text messages to users who

10

switch their wireless service away from an Apple device tortiously interferes

11

with the contracts between these users and their respective wireless carrier,

12

pursuant to which the users are contractually entitled to receive and send text

13

messages;

14

c. Whether Apple properly and appropriately disclosed that its iMessage and

15

Messages service and client application would prevent class members from

16

receiving certain text messages once these class members switched their

17

wireless service away from an Apple device;

18

d. Whether Apple’s conduct, as alleged herein, has injured or is likely to

19

imminently injure the class members; and,

20
21
22
23
24
25
26
27

Questions of law and fact common to Plaintiff and the class exist and predominate

e. The proper remedy;
31.

Plaintiff’s claims are typical of class members’ claims in that they are based on the

same underlying facts, events, and circumstances relating to Apple’s conduct; namely, the nondelivery of text messages once Plaintiff and the class members switched their wireless service
away from an Apple.
32.

Plaintiff will fairly and adequately represent and protect the interests of the

class, has no interests incompatible with the interests of the class, and has retained counsel
competent and experienced in class litigation. Plaintiff, herself, has experienced the injury being

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
12

1
2
3

complained of, because she has had text messages that were not delivered to her following her
switch away from an Apple iPhone 4 equipped with iMessage and Messages to a non-Apple
wireless telephone.

4
5
6
7
8
9
10

33.

because the relief sought for each class member is relatively small such that, absent representative
litigation, it would be unfeasible for class members to redress the wrongs done to them,
particularly when litigating against such a large and well financed corporate entity like Apple.
Moreover, absent class-wide adjudication, there would be a risk of multiple lawsuits against
Defendant that could impose inconsistent and incompatible standards of conduct on Apple
regarding, inter alia, its disclosure, text messaging, or application functionality obligations.

11
12
13
14
15
16
17
18
19
20

Class treatment is superior to other options for resolution of the controversy

34.

Apple has acted or refused to act on grounds generally applicable to the class,

thereby making final injunctive relief and corresponding declaratory relief appropriate.
Specifically, Apple has employed iMessage and Messages as part of its operating systems, and
that service and client application works in such a fashion that causes class members to not receive
certain text messages once they switch their wireless service to a non-Apple device. Apple has not
adequately disclosed this adverse consequence of using iMessage and Messages, and has not
properly disclosed or provided a fix or remedy to prevent this from occurring or to recover the
misdelivered text messages. If Plaintiff prevails on the merits of her claims, then final injunctive
relief mandating that Apple remedy the consequences brought about by its conduct, and that it
prevent it from reoccurring, would be proper.

21
22

COUNT I

23

(TORTIOUS INTERFERENCE WITH CONTRACT)

24
25
26
27

35.

Plaintiff hereby incorporates each and every paragraph of this Class Action

Complaint with the same force and effect as if each of these paragraphs had been fully restated
herein.
36.

Plaintiff and the class members are subscribers to wireless cellular service who

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
13

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

have a contractual relationship with a wireless carrier or service provider (Verizon Wireless, in the
case of Plaintiff) to receive cellular service on their non-Apple cellular telephone or other wireless
device (the Samsung S5, in Plaintiff’s case). As part of that contract, Plaintiff and the class
members are entitled to, inter alia, send and receive text messages in exchange for the monthly fee
and charges they pay to their wireless carrier.
37.

Plaintiff and all class members were users of an Apple iPhone, iPad, or iPod Touch

device that received cellular service from the class member’s wireless service provider. At some
point, Plaintiff and the class members switched the wireless device on which they received cellular
service from their carrier from an Apple device to a non-Apple device. Although the contract they
had with their wireless carrier entitles Plaintiff and the class members to send and receive text
messages on their non-Apple device, Apple tortuously interferes with this contractual relationship
and prevents Plaintiff and the class members from obtaining the full benefits of this contractual
relationship by having its iMessage and Messages service and application act to prevent certain
text messages sent to Plaintiff and the class members from being delivered to Plaintiff and the
class members on their non-Apple devices.
38.

Apple was aware of the existence of the wireless service contract between, on the

one hand, Plaintiff or the class members and, on the other hand, the class members’ wireless
service providers because these same class members were Apple device owners whose wireless
accounts were updated by the wireless service provider to reflect that they no longer were to
receive their wireless service on their former Apple devices, but instead, were to have their
wireless service be provided on non-Apple devices that the class members had chosen as
replacements for their Apple devices.
39.

Apple’s tortious interference with the contract between Plaintiff or the class

members and their respective wireless carriers has resulted in an actual breach of these contracts
because, as a result of Apple’s tortious interference, the wireless carrier is no longer able to deliver
all sent text messages to Plaintiff and the class members, as the carrier is called upon to do under
its contracts with Plaintiff or the class members.

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
14

1
2
3
4
5

40.

As a direct, proximate, and foreseeable result of Apple’s tortious interference with

Plaintiff and the class members’ contracts with their respective wireless carriers, Plaintiff and the
class members have been legally injured and sustained damages by not receiving the full benefit of
their contractual bargain in that, inter alia, text messages that they should have been receiving as
part of their wireless service contracts were not delivered to them.

6
7
8

COUNT II
(VIOLATIONS OF CALIFORNIA’S CONSUMER LEGAL REMEDIES ACT)

9
10

41.

Complaint with the same force and effect as if these paragraphs had been fully restated here.

11
12
13

42.

16

primarily for personal, family, or household purposes.
43.

19
20
21
22
23
24

Plaintiffs and the putative class members were “consumers” within the meaning of

the CLRA in that they purchased cellular telephone or other wireless devices, and subscribed to
wireless cellular service for these devices.

17
18

California’s Consumer Legal Remedies Act (“CLRA”) prohibits deceptive

practices in connection with the conduct of a business that provides goods, property, or services

14
15

Plaintiff incorporates by reference each of the paragraphs of this Class Action

44.

Apple’s policies, acts, and practices of manufacturing, distributing, marketing,

promoting, selling, and advertising its iMessage and Messages service and application without
disclosure that the service would prevent Apple device owners from receiving text messages from
other Apple owners once the users replaced their Apple device with a non-Apple device, were
designed to, and did, result in the purchase and use of the products primarily for personal, family,
or household purposes, and violated and continue to violate the following sections of the CLRA.
Specifically, Apple’s conduct has violated at least the following statutory subsections of the
CLRA:

25
26
27

a. § 1770(a)(5): representing that goods have characteristics, uses, or benefits
which they do not have;

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
15

b. § 1770(a)(7): representing that goods are of a particular standard, quality,

1
2

or grade if they are of another;

3

c. § 1770(a)(9): advertising goods with intent not to sell them as advertised.

4
45.

5

As a result, Plaintiff and the putative class members have suffered irreparable

6 harm and are entitled to injunctive and equitable relief, as well as reasonable attorneys’ fees and
7 costs of suit. At this time, Plaintiff does not seek monetary damages as part of her CLRA claim.
8 Following the filing of this Class Action Complaint, Plaintiff will mail Apple a CLRA demand
9 letter in the manner required by statute. If Apple does not agree and perform the relief requested in
10 the demand letter within 30-days of its receipt, Plaintiff reserves the right to amend this Class
11 Action Complaint to also then assert a claim for relief for money damages under the CLRA.
12
13

COUNT III

14

(VIOLATIONS OF CALIFORNIA’S UNFAIR COMPETITION LAW, Calif. Bus. And

15

Prof. Code, § 17200 et. seq.)

16

46.

Plaintiff incorporateS by reference each of the paragraphs of this Class

17 Action Complaint with the same force and effect as if those allegations had been fully restated
18 here.
19

47.

California’s Unfair Competition Law (“UCL”) prohibits any “unlawful, unfair or

20 fraudulent business act or practice.” (Cal. Bus. & Prof. Code § 17200).
21

48.

Apple’s business practice of distributing, marketing, and its iMessage and

22 Messages service and application in the manner described herein and without disclosing that the
23 iMessage and Messages service and application would prevent its users from receiving certain text
24 messages after they replaced their Apple devices with non-Apple devices is unlawful because it,
25 inter alia, violates the CLRA and tortuously interferes with Plaintiff’s and the class members’
26 contracts with their wireless service providers, as is alleged in this Class Action Complaint.
27

49.

Apple’s business practice of distributing, marketing, and its iMessage and

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
16

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Messages service and application in the manner described herein is also an unfair business practice
because it, inter alia, threatens to harm competition in its incipiency. Class members and others
who become aware that switching their Apple iPhone or other wireless devices in favor of nonApple products will result in these persons not being able to receive text messages sent to them by
other Apple users are likely to be disincentivized from switching from Apple to an Apple
competitor. That much has been underscored now that the issue with Apple’s iMessage and
Messages service and application has been made public in news articles, such as the Business
Insider publication attached hereto as Exhibit 1. As that publication reports “Apple is ounishing
you for ditching your iPhone by cutting you off from your friends, and they want to make it feel
like you need to be on an Apple device to talk to the people you care about.” Exhibit 1 hereot at 1
(internal quotation marks omitted).
50.

Plaintiff sustained legal injury in using Apple’s iMessage and Messages service

and application at a time when Apple was violating the UCL because, inter alia, Plaintiff made a
purchase she would not have made at all, or not on the terms that she did, as a result of being
unaware of the undisclosed adverse consequence of using Apple’s iMessage and Messages service
and application, and then switching away from an Apple device. Plaintiff has also sustained legal
injury as a result of Apple’s UCL violations in that she has been unable to receive the full benefit
of her contractual bargain with her wireless carrier as a result of Apple’s actions that prevent
Plaintiff from receiving all her text messages, as she was entitled to receive under her wireless
service contract.
51.

In making their of Apple devices, Plaintiff and the class members conveyed

money and other intangible benefits onto Apple and, hence, are entitled to, inter alia, restitution
and all other remedies available under the UCL. Plaintiffs are also entitled to and do seek
declaratory and injunctive relief including, but not limited to, a Court Order forcing Apple to fix
the iMessage and Messages service and application in such a manner that will stop the service
from preventing Plaintiff and the class members from receiving text messages sent to them from
other Apple users while Plaintiff and the class members have a non-Apple device, and to require

28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
17

1
2
3
4

Apple to issue corrective advertising or other disclosure campaign to warn class members about
the adverse consequences of having used iMessage and Messages and subsequently switching to a
non-Apple device, and informing class members how to remedy the adverse consequences brought
about by iMessage and Message once the class members switch to a non-Apple device.

5
6

PRAYER FOR RELIEF

7
8

WHEREFORE, Plaintiff, on behalf of herself and on behalf of the other members of the
Class, requests award and relief as follows:

9

A.

An order certifying that this action is properly brought and may be maintained as a

10 class action, that Plaintiff be appointed Class Representative and Plaintiff’s counsel be appointed
11 Class Counsel.
12

B.

Damages to compensate Plaintiff and the Class members for Apple’s tortious

13 interference with Plaintiff’s and the Class members’ contracts with their wireless carriers (money
14 damages are not being currently sought as redress under the CLRA, but may be sought if and
15 when Apple fails to comply with Plaintiff’s CLRA demand letter), with such damages to be
16 awarded to Class members from a common fund Ordered by the Court to be set up and funded by
17 Apple;
18

C.

Restitution in such amount to be determined by the Court;

19

D.

A mandatory injunction requiring Apple to fix its iMessage and Messages service

20 and application, such that these products do not continue to prevent Plaintiff and the Class
21 members from receiving all their text messages sent to them for other Apple devices, and requiring
22 Apple to deliver to Plaintiff and the Class members all previous text messages that were not
23 delivered to them on their non-Apple devices as a result of the Apple iMessage and/or Messages
24 service and application;
25

E.

An Order for injunctive relief requiring Apple to employ corrective disclosure that

26 warns Class members and the public about the adverse consequences of using iMessage and
27
28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
18

1
2

Messages and subsequently switching from an Apple device to a non-Apple device, and
instructing Plaintiff and the Class members as to how to remedy these adverse consequences;

3

F.

An order awarding Plaintiff her costs of suit, reasonable attorneys’ fees, and pre

4 and post-judgment interest.
5

G.

An Order directing Apple to disseminate a Court-approved notice to the absent

6 Class members, informing them about the pendency of this class action, and their rights in that
7 regard;
8

H.

Such other and further relief as may be deemed necessary or appropriate.

9
10
11

JURY DEMAND
Plaintiff hereby demands a jury trial for all issues so triable.

12
13 Dated: May 15, 2014

/s/ Roy A. Katriel___(SBN 265463)____
Roy A. Katriel, Esq. (SBN 265463)
THE KATRIEL LAW FIRM
4225 Executive Square, Suite 600
La Jolla, CA 92037
Telephone: [phone]
Facsimile: [phone]
e-mail: [e-mail]

14
15
16
17
18

Counsel for Plaintiff and the Putative Class
19
20
21
22
23
24
25
26
27
28 Class Action Complaint

Adrienne Moore v. Apple Inc.,
No. ________________
19