In Re: Apple iPhone 3G and 3GS MMS Marketing and Sales Practices Litigation

Filing 135

MOTION to Dismiss by Defendant Apple Inc. Motion Hearing set for 10/14/2010 09:30 AM before Judge Carl Barbier. (Attachments: # 1 Memorandum in Support, # 2 Declaration re: Exhibits, # 3 Exhibits A - L, # 4 Notice of Hearing)(Reference: 09-cv-7609)(Urquhart, Quentin) Modified text on 8/11/2010 (sek, ).

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

IN RE: APPLE iPHONE 3G AND 3GS "MMS" MARKETING AND SALES PRACTICES LITIGATION THIS DOCUMENT RELATES TO: EDLA No. 09-cv-7609 Case No. 4:09-cv-1480 (E.D. Missouri) Sabrina Storner and Paige Lierman, Plaintiffs, v. Apple Inc. and AT&T Mobility LLC, Defendants.

CIVIL ACTION MDL No. 2116 SECTION "J" JUDGE BARBIER MAGISTRATE JUDGE WILKINSON

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT APPLE INC.'S MOTION TO DISMISS FIRST AMENDED AND SUPPLEMENTAL COMPLAINT Defendant Apple Inc. ("Apple") hereby files its Motion to Dismiss Plaintiffs Sabrina Storner and Paige Lierman's ("plaintiffs") First Amended and Supplemental Complaint ("FAC") (ECF No. 75).

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SUMMARY OF ARGUMENT Plaintiffs attempt to avoid dismissal by blatantly mischaracterizing Apple's advertising regarding MMS. Plaintiffs reference Apple advertisements and marketing materials regarding MMS in the FAC, but omit Apple's disclosure that MMS would not be available until late summer 2009.1 Accurate copies of these Apple materials filed herewith demonstrate that Apple consistently provided the disclosure. That plaintiffs persist in this mischaracterization demonstrates the baselessness of their claims. Notably, the named plaintiffs do not identify a single advertisement that either of them allegedly saw and relied on. That is because they cannot do so; all the advertisements plaintiffs allege contained the disclosure. The FAC must be dismissed with prejudice. Plaintiffs do not allege that Apple made any representations about MMS when it launched iPhone 3G in June 2008. The first time Apple announced MMS (among other features) was in 2009. Sabrina Storner allegedly purchased her iPhone 3G before Apple made any representations about MMS. Apple cannot be liable for failing to disclose that the iPhone 3G did not have a feature (MMS) that Apple never represented it had. Storner's claims must be dismissed. Plaintiffs' claims with respect to iPhone 3GS fare no better. Every Apple advertisement or other marketing document for iPhone 3GS that mentioned MMS disclosed that MMS was coming in late summer. Paige Lierman, who allegedly purchased an iPhone 3GS, carefully avoids stating which supposed Apple advertisements she saw. The reason is simple: if Lierman admitted seeing any specific advertisement regarding MMS, it would be evident that she had also seen the disclosure. Either Lierman saw no representation about MMS, in which case there is no basis for her claims, or she saw an Apple advertisement that contained the disclosure, in which case her claims are barred. In one instance, plaintiffs include an entire document but shrink it so far below actual size that the disclosure is rendered unreadable. Actual-size copies of the documents filed herewith demonstrate that the disclosure was included and completely readable.
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Tacitly conceding that their false advertising claims fail, plaintiffs attempt in the FAC to convert their prior false advertising claims into claims based upon ATTM's data service plan. Most basically, plaintiffs' ATTM data service plans cannot provide the basis for their claims against Apple. Moreover, plaintiffs' claims based on the ATTM plans are as misleadingly pled and as lacking in merit as their claims based on Apple's advertising. The FAC itself discloses that ATTM's data plans are not specific to the iPhone 3G or 3GS, but are generic plans for all phones supported by ATTM.2 Such generic plans cannot be the basis for a consumer expectation regarding iPhone 3G or 3GS. Plaintiffs' claims are equally riddled with legal flaws. Their consumer fraud and negligent misrepresentation claims fail to satisfy the elements required to maintain these causes of action. Plaintiffs do not identify the particular representations regarding MMS to which they were allegedly exposed; they do not demonstrate that they relied on the supposed representations; and they do not adequately allege that they were caused injury thereby. Plaintiffs' contract, warranty, and unjust enrichment claims are merely thinly disguised repetitions of their misrepresentation claims. They fail for the same reasons. For all these reasons, the FAC should be dismissed with prejudice.3 Similarly, the ATTM data plan advertising campaign alleged in the FAC applied, as the FAC itself makes clear, to all phones and not to the iPhone in particular. Indeed, the alleged advertising campaign began before even the original iPhone went on sale. 3 In addition to the arguments set forth herein, Apple notes the following further obstacle to plaintiffs' claims. Plaintiffs allege that "AT&T needed to build up its network to support" MMS. (FAC ¶¶ 5-6) State law claims based upon such allegations challenging the sufficiency of ATTM's network infrastructure are preempted by the Federal Communications Act ("FCA"). The United States District Court for the Northern District of California recently granted a dismissal with prejudice of all state law claims in the iPhone 3G MDL on precisely these grounds. In re Apple iPhone 3G Prods. Liab. Litig., ___ F. Supp. 3d ___, No. C 09-02045 JW, 2010 WL 3059417 (N.D. Cal. Apr. 2, 2010). The court held that plaintiffs' claims were "based on the core allegation that Defendants knew that ATTM's 3G network was not sufficiently developed to accommodate the number of iPhone 3G users, and that Defendants deceived Plaintiffs into paying higher rates for a service that Defendants knew they could not deliver." Id. at *6. Therefore, plaintiffs' state law claims were preempted in their entirety against ATTM. If this Court grants ATTM's motion to dismiss on the basis of FCA preemption, it must also dismiss Apple. In the iPhone 3G MDL, the court dismissed the claims against Apple on the ground that ATTM is an indispensable party to claims about its network. Id. at *9. The court
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RELEVANT BACKGROUND Plaintiffs' core allegation is that Apple's advertising and marketing misrepresented or failed to disclose the timing of the release of a single feature -- Multimedia Messaging Service ("MMS") -- among over 100 new features offered on Apple's iPhone 3G and iPhone 3GS. Plaintiffs are wrong. Beginning with its very first announcement regarding MMS, Apple repeatedly and consistently disclosed that MMS would not be available until late summer 2009. There was no misrepresentation, no omission, no concealment, and no misconduct of any kind, as plaintiffs' own FAC and the documents cited therein reveal. A. The Two Text Functions for iPhone: SMS and MMS.

Apple's iPhone allows users to send messages by text. There are two separate text functions, both of which require support from AT&T Mobility LLC's ("ATTM") network. The standard text function is Short Messaging Service ("SMS"). Unlike email, SMS is limited to 160 characters. All Apple iPhones have and always have had the ability to send text messages via SMS. The enhanced text function, MMS (Multimedia Messaging Service), allows users to send pictures or videos by text. As set forth below, the enhanced functionality of MMS was made available for iPhone in the United States in September 2009. Prior to that time, photos and videos could be sent using other commonly supported functions, such as email. Like email, both SMS and MMS require a network connection to send or receive messages. Although most phones come equipped with SMS, not all phones are equipped with the enhanced function, MMS.

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found that "the case could not proceed without ATTM in `equity and good conscience' because any adjudication of claims as to Defendant Apple would necessarily require a determination of the sufficiency of ATTM's 3G network infrastructure." Id. The same holds equally true here and requires dismissal of plaintiffs' claims. Bry-Man's, Inc. v. Stute, 312 F.2d 585, 586 (5th Cir. 1963).

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B.

A Brief History of iPhone. 1. June 2007: Apple Launches the Original iPhone 2G.

In January 2007, Apple announced its intention to release its first cellular telephone, the iPhone 2G. Apple advertised the iPhone 2G as "revolutionary" because it "reinvented the phone" by combining, for the first time, multiple products into one handheld device -- a mobile phone, an iPod music player, and an Internet communications device. (FAC ¶¶ 28-29; Declaration of Penelope A. Preovolos in Support of Apple Inc.'s Mot. to Dismiss ("Preovolos Decl."), Ex. A)4 iPhone 2G did not have MMS capabilities. Apple never represented that MMS was available for iPhone 2G, and plaintiffs do not contend otherwise. (Preovolos Decl., Ex. A) The iPhone 2G was first sold in June 2007. (FAC ¶ 31) Apple discontinued sales of the iPhone 2G one year later, in July 2008. 2. June 2008: Apple Launches iPhone 3G.

In June 2008, Apple announced its second-generation iPhone, the iPhone 3G. The iPhone 3G was available for sale on July 11, 2008. The iPhone 3G is supported by ATTM's third-generation or "3G" network as well as the 2G network. (FAC ¶¶ 32-33) The 3G technology "allows simultaneous use of speech and data services" and faster data transfer speeds. (FAC ¶ 33) Apple did not make any representations about the availability of MMS at the time of the iPhone 3G launch, and plaintiffs do not contend that it did. (FAC ¶¶ 32-33) In fact, ATTM published a statement informing owners of non-MMS-compatible phones, such as iPhone 3G,

Apple attaches documents that plaintiffs plead or reference in the FAC but do not attach to the FAC. This Circuit has held that the inclusion of such documents is appropriate and does not convert the present motion to dismiss to a motion for summary judgment. See Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000) ("[D]ocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff's complaint and are central to [the] claim."); Borders v. Chase Home Fin., L.L.C., No. 09-3020, 2009 U.S. Dist. LEXIS 54871, at *12 (E.D. La. June 29, 2009).

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that they would not be able to receive MMS photos or videos directly on their phones but could nonetheless download them from a website. (FAC ¶ 37) As described in greater detail below, the first time Apple mentioned MMS in connection with any iPhone was in March 2009. Apple discontinued sales of the iPhone 3G in June 2010. 3. June 2009: Apple Launches iPhone 3GS.

On June 8, 2009, Apple announced its third-generation iPhone, the iPhone 3GS. (FAC ¶ 39) The iPhone 3GS was available for sale on June 19, 2009. As set forth below, this was the first time Apple generally advertised MMS as a feature of any iPhone. 4. June 2010: Apple Launches iPhone 4.

In June 2010, Apple announced the launch of its newest iPhone, the iPhone 4. MMS is available for iPhone 4. Apple and ATTM both sell Apple's currently shipping iPhones -- iPhone 4 and iPhone 3GS -- through their respective retail stores and websites. (FAC ¶ 28) C. What Apple Said About MMS and iPhone. 1. March 2009: Apple Announces Summer Release of New iPhone OS 3.0 Software With Over 100 New Features, Including MMS, at Event for Registered Software Developers.

The first time Apple made any representation about MMS was on March 17, 2009. Apple previewed its anticipated new iPhone OS 3.0 software update for iPhone 3G through a beta release available exclusively to registered iPhone software developers. (Preovolos Decl., Ex. B) Among the over 100 new features discussed, Apple announced to the software developers that Apple's "future plans" for iPhone software included MMS. (FAC ¶¶ 40-41; Preovolos Decl., Ex. C at 00:00:30-33) During the presentation, Apple's Vice President of iPod and iPhone Product Marketing also told the audience that the new iPhone software would be made available "first . . . as a developer beta" that same day only to "everyone in [the] iPhone developer

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program" but would be "shipping for the rest of us this summer." (Preovolos Decl., Ex. C at 1:24-1:28:30)5 Apple also issued a press release the same day announcing that MMS, among other features, would be available "this summer." (FAC ¶ 40; Preovolos Decl., Ex. B) Apple made no other references to MMS until the launch of iPhone 3GS in June 2009. (FAC ¶¶ 39-55)6 2. June 2009: Apple Announces iPhone 3GS at Worldwide Developers Conference and Tells Customers MMS Support Would Be Available in "Late Summer."

Apple announced the third-generation iPhone -- iPhone 3GS -- during the Worldwide Developers Conference ("WWDC") on June 8, 2009. (FAC ¶ 39) Apple's Senior Vice President of iPhone Software told the WWDC audience that: "In the United States, AT&T will be ready to support MMS later this summer." (Preovolos Decl., Ex. D at 56:13-57:01 (emphasis added)) Apple issued a press release the same day, which also clearly stated: "MMS support from AT&T will be available in late summer." (Preovolos Decl., Ex. E (emphasis added))7

Apple also made it clear that MMS would not be available for iPhone 2G, only for iPhone 3G, due to retroactive hardware-software compatibility issues between iPhone 2G and iPhone OS 3.0. (Preovolos Decl., Ex. B and Ex. C at 1:26 ­ 1:27:38) Plaintiffs allege that Apple's March 17, 2009 press release stating that MMS was "available only on the iPhone 3G" was "false and misleading." (FAC ¶ 40) Plaintiffs are incorrect. The press release made it clear that MMS would not be available via the iPhone OS 3.0 software update for iPhone 3G until summer 2009. The point of Apple's statement was that the software release would make MMS available only for iPhone 3G and not for iPhone 2G. Moreover the iPhone 3GS was not announced until three months later (FAC ¶ 39), so Apple's statement did not relate to iPhone 3GS. 6 The FAC incorrectly states that Apple announced MMS in March 2009 to promote sales of iPhone 3GS. (FAC ¶ 40) That is not the case, as the iPhone 3GS was not announced until June 2009. (FAC ¶ 39) Contrary to plaintiff's assertions, the March 17, 2009 announcements concerned only the new iPhone OS 3.0 software, and did not mention the iPhone 3GS. 7 Apple announced that MMS messaging would be available only for iPhone 3G or iPhone 3GS and not for iPhone 2G. (Preovolos Decl., Ex. E)

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June 2009­September 2009: Apple Advertises iPhone 3G and 3GS MMS Capabilities as "Coming in Late Summer."

Apple's advertisements for iPhone 3G or iPhone 3GS from June 2009 until the release of MMS in September 2009 included an express disclosure notifying customers that MMS would not be available from ATTM until "late summer." Critically, the Apple advertisements plaintiffs cite in the FAC include that disclosure, but plaintiffs omit it from the FAC and do not include copies of the advertisements. When viewed in full, the advertisements plaintiffs partially plead in the FAC include the MMS timing disclosure: 8 iPhone Software Update web page: Plaintiffs selectively quote only the portion of the web page discussing MMS, but omit the footnote containing the language "MMS support from AT&T coming in late summer" (compare FAC ¶ 45 with Preovolos Decl., Exs. G, G1); Apple/ATTM Kiosk video: Plaintiffs allege the iPhone 3GS video that played on seven-foot-tall kiosks in Apple and ATTM retail stores contained a segment about MMS, but omit the following language: "MMS support from AT&T coming in late summer" (compare FAC ¶ 47 with Preovolos Decl., Ex. H at 1:50, Ex. H1); iPhone 3GS Guided Tour: Plaintiffs allege the Guided Tour video contains "a section devoted to MMS" but omit the following language: "MMS support from AT&T coming in late summer" (compare FAC ¶¶ 48-49 with Preovolos Decl., Ex. I at 9:26, Ex. I1); "Send MMS" Apple web page: Plaintiffs selectively quote only the portion of the web page about MMS and omit the asterisk and the language following the The FAC acknowledges that references on Apple's website to sending "photos, video, audio, and more" using MMS included the statement "MMS support from AT&T coming in late summer," (FAC ¶ 46; Preovolos Decl., Ex. F), but the FAC omits the disclosure from its recitation of Apple's other advertising. Similarly, the FAC includes a size-reduced screen shot of Apple's web page in a misleading attempt to render the relevant "late summer" language unreadable. (FAC ¶ 46) A copy of the web page as it actually would have appeared to a customer is attached as Exhibit F1 to the Preovolos Declaration.
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asterisk: "MMS support from AT&T coming in late summer" (compare FAC ¶ 50 with Preovolos Decl., Exs. F, F1); and "Photos and Videos" Apple web page: Plaintiffs selectively quote only the portion of the web page about MMS and omit the following language: "MMS support from AT&T coming in late summer" (compare FAC ¶ 51 with Preovolos Decl., Exs. J, J1). Plaintiffs' failure to attach any of these materials is a transparent attempt to avoid Apple's clear and systematic disclosures about MMS availability. Plaintiffs points to only one written representation that did not contain the disclosure -- the iPhone 3G (not 3GS) box. (FAC ¶ 43) But the iPhone box did not list MMS as a feature or, indeed, refer to MMS at all. (FAC ¶ 43; Preovolos Decl., Ex. K) Thus, a disclosure regarding the timing of MMS's release was not only unnecessary, it would have made no sense. Similarly, the FAC contains allegations regarding a single oral communication -- an investors call on July 21, 2009 -- during which MMS was mentioned without the "late summer" disclosure. (FAC ¶ 55) But the purpose of Apple's third-quarter earnings call was not to market iPhones. Rather, it was a quarterly earnings conference call designed to update Apple's investors and the financial press on the company's financial status. In the course of the one-hour conference call, an Apple spokesperson made a passing reference to the over 100 new features of the iPhone OS 3.0 software, including MMS. (FAC ¶ 55; Preovolos Decl., Ex. L at 4 para. 3) In any event, plaintiffs both purchased their iPhones before the earnings call. Accordingly, they could not have learned of or relied on any statement made during the call in deciding to purchase the iPhone, and it thus is irrelevant to the present motion to dismiss. The other Apple representations plaintiffs plead in the FAC included the disclosure about "late summer" availability for MMS. 4. September 25, 2009: MMS Available for iPhone 3G and 3GS.

Three months after the iPhone 3GS went on sale, ATTM made MMS available. In early September 2009, ATTM announced that MMS would be available for iPhone 3G and 3GS users

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on September 25, 2009. MMS has been available since September 25, 2009. Plaintiffs acknowledge there have been no issues with MMS availability since that date by cutting off the putative class after September 25, 2009. (FAC ¶ 63) D. What Apple Did Not Say About MMS and iPhone.

The FAC also unsuccessfully seeks to obscure both what Apple did not say and what it did say about MMS. As set forth above, Apple never made any representations about MMS for iPhone 2G, and plaintiffs do not suggest otherwise. Similarly, Apple made no general representations about MMS for iPhone 3G prior to June 2009.9 From June 2009 on, when Apple did advertise MMS, Apple consistently included the disclosure: "MMS support from AT&T coming in late summer." Plaintiffs seek to avoid these facts, which spell the demise of their claims, by instead endeavoring to refocus the FAC on what ATTM allegedly said about its messaging plans. But this stratagem is equally unavailing. The FAC tacitly concedes that ATTM's advertising of its iPhone 3G and 3GS messaging plans never represented that iPhone 3G would be MMS-capable. (FAC ¶¶ 34, 57) Plaintiffs do not allege that ATTM made any pre-sale representations regarding MMS for the iPhone. Rather, the vast majority of the ATTM representations plaintiffs cite are not specific to the iPhone but are generic representations about ATTM's pricing plans. In fact, the only preMarch 2009 representation pled in the FAC is an ATTM commercial about text messaging plans for all ATTM phones. (FAC ¶ 31) But that commercial makes no mention of iPhone whatsoever. Nor could it. As plaintiffs have previously admitted, ATTM's unlimited messaging plans were launched in April 2007, two months before Apple sold any iPhone, much less the second- and third-generation iPhones at issue here. (Pls.' Mem. on the Scope, Extent, and

As noted in section C.1 above, MMS was mentioned during the March 17, 2009 software developer presentation as one of the many features to be provided by the iPhone OS 3.0 software bundle, but the presentation specifically disclosed that OS 3.0 would not be available to the public until summer 2009.

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Timing of Discovery, at 4, ECF No. 33)10 General commercials about ATTM data plans applicable to all phones, including a commercial before any iPhone was ever released, cannot be the basis for plaintiffs' alleged expectations concerning the specific features of iPhone 3G and 3GS. Not surprisingly, plaintiffs do not allege that Apple made any representations regarding ATTM's messaging plans. (FAC ¶ 31) Plaintiffs point to only one ATTM representation that they contend is iPhone-specific. (FAC ¶ 34) However, plaintiffs' other allegations state that the ATTM plans were all the same and were not specific to any particular iPhone. (FAC ¶ 57 ("Regardless of the particular iPhone purchased, the same basic pricing plans exist for all iPhones.")) Similarly, plaintiffs concede that ATTM's pricing plans were not specific to any particular manufacturer's phone. Plaintiffs allege that ATTM's "iPhone 3G pricing plans" were the "same plans offered to all of its customers," not just iPhone customers. (FAC ¶ 34) "Specifically, for every other AT&T mobile phone," ATTM's messaging plans "are the exact same prices" as the "charges for iPhone customers." (FAC ¶ 61) Indeed, plaintiffs acknowledge that the messaging plans were not even unique to ATTM, but comprised the same bundle of messaging services offered by "all other wireless service providers." (FAC ¶ 34) Plaintiffs cannot seriously suggest that ATTM's generic data plans defined iPhone-specific features, in particular MMS, without any specific representation to that effect. Instead, plaintiffs seek to rely on purported ATTM billing statements for some unidentified "class plaintiff" for the period July 15, 2009, through September 14, 2009. (FAC ¶ 59) Plaintiffs could not have relied on those statements in purchasing their iPhones, The FAC avoids this factual problem by using misleading pleading tactics. The FAC alleges that "AT&T continued marketing its Messaging Unlimited plan" in "October of 2007," but conspicuously omits when ATTM began marketing that plan. (FAC ¶ 31 (emphasis added)) Plaintiffs cannot disguise the facts they previously represented to the Court through artful pleading and are bound by their prior admissions. Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir. 1988) ("[A] party who has assumed one position in his pleadings may be estopped from assuming an inconsistent position. . . . The purpose of the doctrine is `to prevent parties from "playing fast and loose" with (the courts) to suit the exigencies of self interest.'") (citation omitted).
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however, because they necessarily received the statements after they purchased their iPhones in March and early July 2009, respectively. (FAC ¶¶ 13, 14) Nor can these incomplete excerpts from two ATTM billing statements received by some other plaintiff after their iPhone purchases provide a basis for their own misrepresentation claims against Apple.11 E. Plaintiffs' iPhone Purchases.

Plaintiff Sabrina Storner. Plaintiff Sabrina Storner ("Storner") alleges that she purchased an iPhone 3G on March 14, 2009, from an AT&T store. (FAC ¶ 13) Storner alleges that at the time of her purchase, she "expected that the iPhone would have the ability to text pictures." (FAC ¶ 13) But Storner could have had no basis for such an expectation. By her own admission, she bought her iPhone 3G before Apple's March 17, 2009 software developer event and press release, its very first public announcement of MMS. Storner alleges that prior to purchasing her iPhone 3G, she owned a "Katana II" phone purchased from Sprint. (FAC ¶ 15) Storner does not allege that her Sprint phone provided MMS capability. (FAC ¶ 15) However, she alleges that she "reasonably expected" that "the newer iPhone model would have the capacity and ability to send picture messages." (FAC ¶ 15) Storner does not allege any basis for that expectation. Instead, Storner offers the generic allegation that she "reasonably relied upon the representations by Apple and AT&T . . . to form [this] belief." (FAC ¶ 16) But she could not have done so, because there had been no such representations at the time of her purchase. Notably, Storner never identifies a single representation by Apple (or ATTM) that she relied on in forming this belief, because she saw none. Moreover, Storner could not have relied upon the "revolutionary" nature of iPhone 3G, because "revolutionary product" was the focus of the iPhone 2G, not the iPhone 3G, advertising

An examination of the other amended complaints filed in this MDL discloses that the billing statements belong to plaintiff Williams in the Sterker action. Plaintiffs cannot have it both ways: they cannot decline to file a master complaint and then rely upon facts and allegations in one action to support their claims in another.

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campaign. (FAC ¶ 28) Indeed, none of the advertisements plaintiffs plead in the FAC even includes the term "revolutionary." Finally, Storner admits that she learned her iPhone 3G did not have MMS, yet she never alleges that she even attempted to return the iPhone. (FAC ¶ 18) Plaintiff Paige Lierman. Plaintiff Paige Lierman ("Lierman") alleges that she purchased an iPhone 3GS in the "first week of July 2009" from an Apple store. (FAC ¶ 14) Lierman alleges that at the time of her purchase, she "expected that the iPhone would have the ability to text pictures." (FAC ¶ 14) Lierman alleges that prior to purchasing her iPhone 3GS, she owned a "Blackberry" phone purchased from T-Mobile. (FAC ¶ 15) Lierman does not allege that her T-Mobile phone provided MMS capability. (FAC ¶ 15) However, she alleges that she "reasonably expected" that "the newer iPhone model would have the capacity and ability to send picture messages." (FAC ¶ 15) Lierman does not allege any basis for that expectation. Instead, Lierman offers the generic allegation that she "reasonably relied upon the representations by Apple and AT&T . . . to form [this] belief." (FAC ¶ 16) But Lierman never identifies a single representation by Apple (or ATTM) that she relied on in forming this belief. Nor could she, since Apple's representations alleged in the FAC contained the timing disclosure that MMS was "coming in late summer." Moreover, Lierman could not have relied upon the "revolutionary" nature of iPhone 3GS, because "revolutionary product" was the focus of the iPhone 2G, not the iPhone 3GS, advertising campaign. (FAC ¶ 28) Indeed, none of the advertisements plaintiffs plead in the FAC even includes the term "revolutionary." Finally, Lierman admits that she learned her iPhone 3GS did not have MMS, yet she never alleges that she even attempted to return the iPhone. (FAC ¶ 18) F. The First Amended and Supplemental Complaint.

The FAC asserts seven causes of action under Missouri law: (1) violation of the Missouri Merchandising Practices Act ("MMPA"), Mo. Rev. Stat. § 407.020 et seq.; (2) breach of contract (against ATTM only); (3) breach of contract (against Apple and ATTM); (4) breach of the implied covenant of good faith and fair dealing; (5) breach of express warranty; (6) unjust

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enrichment; and (7) negligent misrepresentation. (FAC ¶¶ 72-118) As against Apple, plaintiffs purport to represent a putative class of "all United States residents who purchased an iPhone 3G or 3GS from AT&T Mobility LLC or Apple Inc. from July 11, 2008 to September 25, 2009, primarily for personal, family, or household use." (FAC ¶ 63) For the reasons set forth below, the FAC must be dismissed with prejudice. LEGAL STANDARD Dismissal under Rule 12(b)(6) is required when the plaintiff fails to set forth "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Gonzalez v. Kay, 577 F.3d 600, 603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)) (internal quotations omitted), cert. denied, 130 S. Ct. 1505 (2010). To satisfy Rule 8(a)(2), the plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Iqbal, 129 S. Ct. at 1949). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not `show[n]' -- `that the pleader is entitled to relief.'" Id. (quoting Iqbal, 129 S. Ct. at 1950 (quoting Rule 8(a)(2))). Pleadings that offer mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Claims alleging fraudulent conduct must withstand the heightened pleading standard of Rule 9(b), which requires the plaintiff to "state with particularity the circumstances constituting the fraud." Shandong Yinguang Chem. Indus. Joint Stock Co. v. Potter, No. 09-20268, 2010 U.S. App. LEXIS 10881, at *5 (5th Cir. May 27, 2010) (quoting Rule 9(b)). The Fifth Circuit "interprets Rule 9(b) strictly, requiring a plaintiff . . . to specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent." Dorsey v. Portfolio Equities, Inc., 540 F.3d 333, 339 (5th Cir. 2008) (citation omitted). "Put simply, Rule 9(b) requires the complaint to set forth the who, what, when, where, and how of the events at issue." Id. (quotations and citation omitted).

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ARGUMENT I. PLAINTIFFS LACK STANDING UNDER ARTICLE III AS TO ALL CAUSES OF ACTION. The FAC and all causes of action therein must be dismissed because plaintiffs have not pled facts sufficient to satisfy the standing requirements of the United States Constitution, Article III. Article III standing requirements include "a causal connection between the injury and the conduct complained of -- the injury has to be `fairly . . . trace[able] to the challenged action of the defendant.'" Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citation omitted). The "named plaintiffs who represent a class `[must] allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.'" Lewis v. Casey, 518 U.S. 343, 357 (1996) (citation omitted). The FAC alleges six causes of action against Apple, all of which are predicated upon "common facts" related to Apple's and ATTM's alleged misrepresentations about the timing of the availability of MMS. (FAC ¶¶ 26-62) Nowhere in the FAC have plaintiffs alleged that they saw or relied on any of the advertising pled in the complaint regarding MMS before purchasing their iPhones. Indeed, by her own admission, plaintiff Storner purchased her iPhone several days before any Apple statements concerning MMS. Plaintiffs cannot establish reliance, causation, or injury. Nor can they amend to cure this deficiency. Every advertisement pled in the FAC contains the disclosure regarding the timing of MMS's release. If plaintiffs saw these advertisements, they were on notice of the timing of MMS availability and could not have thereby been injured. Thus, plaintiffs cannot establish Article III standing, and their claims must be dismissed with prejudice. II. RULE 9(b) REQUIRES DISMISSAL OF PLAINTIFFS' FRAUD-BASED CLAIMS. The Federal Rules of Civil Procedure apply in diversity cases. See Hyde v. HoffmanLa Roche, Inc., 511 F.3d 506 (5th Cir. 2007). Thus, Federal Rule of Civil Procedure 9(b) applies to the present diversity case, which was brought under the Class Action Fairness Act.

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(FAC ¶ 24) As set forth in detail below, plaintiffs' allegations fall far short of the heightened pleading requirements of Rule 9(b). A. Rule 9(b) Applies to State Law Claims Grounded in Fraud.

"A claim of fraud can neither be presumed nor stated in general terms." Peters v. Metro. Life Ins. Co., 164 F. Supp. 2d 830, 835 (S.D. Miss. 2001) (quotations omitted). "At a minimum, Rule 9(b) requires allegations of the particulars of time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby." Tel-Phonic Servs., Inc. v. TBS Int'l, Inc., 975 F.2d 1134, 1139 (5th Cir. 1992) (quotations and citation omitted). "Put simply, Rule 9(b) requires `the who, what, when, where, and how' to be laid out." Dorsey, 540 F.3d at 339. "State law fraud claims are subject to the heightened pleading requirements of Rule 9(b)." Sullivan v. Leor Energy, LLC, 600 F.3d 542, 550-51 (5th Cir. 2010). Similarly, state law claims predicated on the same set of (fraud-based) facts are subject to Rule 9(b)'s heightened requirements. See, e.g., Potter, 2010 U.S. App. LEXIS 10881, at *5; Pinero v. Jackson Hewitt Tax Serv. Inc., 594 F. Supp. 2d 710, 721 (E.D. La. 2009) (applying Rule 9(b) to Louisiana Unfair Trade Practices Act where "plaintiff's [] claim is based on defendants' allegedly fraudulent misrepresentation"). Moreover, Rule 9(b) applies equally to fraud-based allegations of misrepresentation and omission. See, e.g., id.12 Fifth Circuit courts "apply the rule with force, without apology." Williams v. WMX Techs., Inc., 112 F.3d 175, 178 (5th Cir. 1997) ("[R]eady

In actions transferred pursuant to 28 U.S.C. § 1407, the procedural law of the transferee court applies. See Bhatia v. Dischino, No. 3:09-cv-1086-B, 2010 U.S. Dist. LEXIS 31750, at *9-10 (N.D. Tex. Mar. 30, 2010) ("Because the Court is hearing this action as a result of a forum transfer by the Multidistrict Litigation Panel, if called upon to address matters of state law, the Court is bound to apply the state law of the transferor forum. As to matters of federal law, however, it is the law of the transferee court that governs. Thus, because pleading requirements are purely matters of federal law, the Court looks to the law of the transferee court -- this Circuit -- for controlling Rule 12(b)(6) and Rule 9(b) standards.") (citations omitted). Here, however, Fifth Circuit and Eighth Circuit decisions respecting application of Rule 9(b) to claims sounding in fraud are in accord. See, e.g., Drobnak v. Andersen Corp., 561 F.3d 778, 784 (8th Cir. 2009) (affirming dismissal of claims "sounding in fraud" for failure to satisfy heightened pleading standard of Rule 9(b)).

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access to the discovery engine . . . has been held back for certain types of claims. An allegation of fraud is one. Rule 9(b) demands a larger role for pleading in the pre-trial defining of such claims."). The overarching premise of the FAC is that the Apple and ATTM "represent[ed] that the phones would have MMS capability when Defendants knew, in fact, that they would not have such capability, and further represent[ed] that their messaging plans would include MMS when, in fact, they would not." (FAC ¶ 76) All of plaintiffs' causes of action are based on a set of "common facts" regarding Apple's and ATTM's alleged misrepresentations about MMS. Accordingly, plaintiffs must satisfy the heightened pleading requirements of Rule 9(b) as to all claims. They fail to do so. The FAC never identifies which advertisements plaintiffs saw, if any -- including whether they saw any MMS representations; what specific advertising they relied on; or how they were allegedly injured. Plaintiffs do not allege a single fact showing how (or even whether) either of them was caused injury; they offer only the bare legal conclusion that they have suffered an ascertainable loss. (FAC ¶¶ 116, 118) The Fifth Circuit "strictly interprets" Rule 9(b)'s requirements, and for the reasons set forth below, plaintiffs' claims must be dismissed. Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th Cir.), cert. denied, 130 S. Ct. 199 (2009). B. Plaintiffs' Missouri Merchandising Practices Act Claim Fails to Satisfy Rule 9(b).

The MMPA creates a private right of action for "[a]ny person who purchases merchandise primarily for personal, family or household purposes and thereby suffers an ascertainable loss of money or property, real or personal, as a result of the use or employment by another person of a method, act or practice declared unlawful by section 407.020." Mo. Rev. Stat. § 407.025(1); see also Chochorowski v. Home Depot U.S.A., Inc., 295 S.W.3d 194, 197-98 (Mo. Ct. App. 2009) (citing Hess v. Chase Manhattan Bank, U.S.A., 220 S.W.3d 758, 773 (Mo. 2007)). Here, plaintiffs fail to allege that they lost money or property as a result of an

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alleged violation of the MMPA. Rule 9(b) demands that plaintiffs allege particularized facts establishing that Apple "use[d] or employ[ed] . . . [a] deception, fraud, false pretense, false promise, misrepresentation, unfair practice or the concealment, suppression, or omission of any material fact in connection with the sale or advertisement" of the iPhone 3G or iPhone 3GS. Mo. Rev. Stat. § 407.020(1). They have not, and their MMPA claim must therefore be dismissed. 1. Apple's Accurate Representations Regarding MMS Do Not Violate the MMPA.

Plaintiffs' allegations in the FAC fall far short of establishing a violation of the MMPA. These allegations all ignore one central fact -- Apple's advertising regarding MMS disclosed when MMS would be released. Plaintiffs cannot simply omit these disclosures and thereby render accurate advertising deceptive. Further, plaintiffs have not pled the "who, what, when, where, and how" of any of Apple's statements about MMS as required by Rule 9(b) and thus cannot state an MMPA claim. See, e.g., Dorsey, 540 F.3d at 339 (quotations and citation omitted); Blake v. Career Educ. Corp., No. 4:08-CV-00821 ERW, 2009 U.S. Dist. LEXIS 3432, at *6 (E.D. Mo. Jan. 20, 2009) (MMPA claim must meet the heightened pleading standard of Rule 9(b)).13 The MMPA and Rule 9(b) require details regarding which individual plaintiff saw which specific Apple representation, where and when the misrepresentation was made, and how the misrepresentation was communicated to each plaintiff. See Blake, 2009 U.S. Dist. LEXIS 3432, at *6-7. Plaintiffs do not allege the advertisements with the requisite particularity as to time and place. (FAC ¶¶ 46, 47, 50, 51 (representations made "at certain times" during the 15-month class period); FAC ¶¶ 45, 48, 49 (no date specified)) Such vague allegations are insufficient to state a claim under the MMPA. See Blake, 2009 U.S. Dist. LEXIS 3432, at *6-7 (dismissing MMPA claim under Rules 9(b) and 12(b)(6) where plaintiffs "merely allege[d] that, at some point over a period of five years, one of the six . . . [p]laintiffs received information from one of the five [defendants]," and "fail[ed] to mention . . the precise date"). Moreover, the only representations plaintiffs do plead as to time and place are incomplete excerpts of the actual advertisements, omitting the key language of the timing disclosure, and also fail to satisfy Rule 9(b). (FAC ¶¶ 42, 43, 54) See Blake, 2009 U.S. Dist. LEXIS 3432, at *6-7 (MMPA claim failed to satisfy Rule 9(b) where no allegations made as to "the content of each of the . . . fraudulent misrepresentations").
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Furthermore, plaintiffs allege they relied upon unspecified representations by Apple and ATTM and their "general understanding of the `revolutionary' nature of the iPhone 3G." (FAC ¶ 16) However, claims that the iPhone was "revolutionary" are non-actionable puffery. See Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., No. 04-3421-CV, 2006 U.S. Dist. LEXIS 92333, at *7 (W.D. Mo. Dec. 21, 2006); see also Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964, 973 (N.D. Cal. 2008), aff'd, 2009 U.S. Dist. LEXIS 7259 (9th Cir. 2009). Courts uniformly hold that "revolutionary" is a generalized statement that cannot give rise to legal liability. See Allied Erecting and Dismantling Co. v. Genesis Equip. & Mfg., 649 F. Supp. 2d 702, 727 (N.D. Ohio 2009) (holding that defendant's "use of terms such as `revolutionary' and `unique' constitutes a general claim of superiority over comparable products that is so vague that it can be understood as nothing more than mere expression of opinion. In other words, these statements are mere puffery") (citation and quotations omitted); Soilworks, LLC v. Midwest Indus. Supply, Inc., 575 F. Supp. 2d 1118, 1133 (D. Ariz. 2008) (holding "revolutionary state-ofthe-art innovation" is "mere puffery") (citation and quotations omitted); In re NVE Corp. Sec. Litig., 551 F. Supp. 2d 871, 902 (D. Minn. 2007) (holding "use of the word `revolutionary' to characterize MRAM was inactionable puffery"), aff'd, 527 F.3d 749 (8th Cir. 2009). The general term "revolutionary" cannot conceivably be construed to represent that the iPhone would offer a specific feature such as MMS. Therefore, plaintiffs' MMPA cause of action fails as a matter of law, and Count I must be dismissed. 2. Plaintiffs Fail to Allege Any Concealment, Suppression, or Omission of Material Facts.

Nor can plaintiffs state a claim for fraudulent concealment. With respect to plaintiff Storner, there was nothing for Apple to conceal: Apple had never in any way suggested that MMS would be available for iPhone 3G at the time Storner made her purchase. Storner cannot seriously suggest that it is "concealment" for a manufacturer not to disclose that its product lacks a feature the manufacturer never represented it had.

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Plaintiffs' "concealment" argument is equally meritless as to plaintiff Lierman. As noted, every Apple advertisement pled in the FAC expressly disclosed that MMS would be available in late summer 2009. Apple cannot have "concealed" a fact it affirmatively disclosed. C. Plaintiffs' Negligent Misrepresentation Claim Fails to Satisfy Rule 9(b).

Missouri law requires that a plaintiff alleging negligent misrepresentation plead facts establishing the following: "(1) the [defendant] supplied information in the course of his business; (2) because of a failure by the [defendant] to exercise reasonable care, the information was false; (3) the information was intentionally provided by the [defendant] for the guidance of a limited group of persons in a particular business transaction; (4) the [plaintiff] justifiably relied on the information; and (5) due to the [plaintiff's] reliance on the information, the [plaintiff] suffered a pecuniary loss." Kesselring v. St. Louis Group, Inc., 74 S.W.3d 809, 813 (Mo. Ct. App. 2002); see also Grobe v. Vantage Credit Union, 679 F. Supp. 2d 1020, 1027 (E.D. Mo. 2010).14 Because a negligent misrepresentation claim sounds in fraud, it must also meet the heightened pleading requirement of Rule 9(b). See In re Bisphenol-A Polycarbonate Plastic Prods. Liab. Litig., 687 F. Supp. 2d 897, 904 n.3 (W.D. Mo. 2009) ("The Court rejects Plaintiffs' intimation that Rule 9(b) does not apply to claims of negligent misrepresentation."). Plaintiffs have not pled any facts establishing the requisite reliance on an actionable misrepresentation, or that they were members of a limited group of persons in a particular business transaction. 1. Plaintiffs Cannot Allege Justifiable Reliance.

Plaintiffs have not alleged any facts suggesting that they relied, justifiably or otherwise, on any representations made by Apple. Plaintiff Storner could not have relied on any of Apple's alleged statements regarding MMS, because she purchased her iPhone before Apple advertised MMS as a feature for iPhone. Plaintiff Lierman does not allege a single Apple advertisement that she saw and relied upon prior to purchasing her iPhone 3GS. "A person cannot rely on a Of course, statements that are no more than mere puffery are not actionable as negligent misrepresentation. See, e.g., Bath Junkie Branson, L.L.C. v. Bath Junkie, Inc., No. 04-3421-CV, 2006 U.S. Dist. LEXIS 92333, at *7 (W.D. Mo. Dec. 21, 2006).
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misrepresentation if the person did not hear the misrepresentation." In re Bisphenol-A, 687 F. Supp. 2d at 904 n.5 ("[N]one of the [p]laintiffs allege they heard or otherwise received these `misrepresentations' . . . . This is an independent reason to dismiss these claims [for negligent misrepresentation]."); see also Stein v. Novus Equities Co., 284 S.W.3d 597, 603 (Mo. Ct. App. 2009) (petition failed to state a cause of action for negligent misrepresentation where "[n]one of the allegations in Plaintiffs' petition set forth facts which, if proven, would establish that Plaintiffs took or refrained from taking any action in reliance upon the misrepresentations allegedly made by Defendants"). The legal conclusions pled in the FAC are insufficient. (FAC ¶ 53) Bare legal conclusions do not pass muster under Rule 8, let alone Rule 9(b). See Iqbal, 129 S. Ct. at 1950 ("Rule 8 . . . does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."). Plaintiffs' failure to properly allege reliance is not a simple pleading omission: it reflects a fundamental and incurable defect in their claims. 2. A Claim for Negligent Misrepresentation Must be Based On Information Intentionally Supplied to Members of a Limited Group of Persons, Not to the General Public.

Missouri law also requires that plaintiffs allege facts establishing that Apple "intentionally provided" guidance in a particular business transaction to a limited group of people. See Grobe, 679 F. Supp. 2d at 1027. The FAC lacks any such allegations. Plaintiffs do not allege that they belonged to a "limited group" of people, nor do they allege that the information was supplied in connection with a particular business transaction. Plaintiffs do not differentiate themselves from the public as a whole or explain how Apple's communications concerning MMS were directed at anyone other than the general public. As a result, plaintiffs cannot state a claim for negligent misrepresentation. See, e.g., Reding v. Goldman Sachs & Co., 382 F. Supp. 2d 1112, 1120 (E.D. Mo. 2005) (plaintiffs failed to state claim for negligent misrepresentation because they failed to allege they were members of a limited group for whom the information was intended, and instead claimed that the false information was "widely disseminated" to the public); Chubb Group of Ins. Cos. v. C.F. Murphy & Assocs., Inc., 656

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S.W.2d 766, 785 n.13 (Mo. Ct. App. 1983) ("Absent plaintiffs' alleged status as a leaseholder, they would not be members of a `limited group' and hence, a negligent misrepresentation cause of action would not exist here. Their status as members of a group consisting of `the general public and other users of Kemper Arena' would not be sufficient . . . ."). III. PLAINTIFFS CANNOT STATE A CLAIM FOR BREACH OF EXPRESS WARRANTY, CONTRACT, OR THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING. A. These Claims Are Merely Repackaged Versions of Plaintiffs' MMPA and Negligent Misrepresentation Claims, and Must Be Dismissed for the Same Reasons.

Plaintiffs' express warranty, contract, and implied covenant of good faith and fair dealing claims are identical to their claims for violation of the MMPA and negligent misrepresentation, very thinly disguised with sparse legal conclusions using the rhetoric of warranty and contract law. It is important to be clear about what plaintiffs do and do not allege. Plaintiffs do not allege that Apple's express, one-year limited warranty was breached, nor do they allege that they entered into some other written contract with Apple at the time of purchase. Rather, plaintiffs assert that Apple's advertising of MMS allegedly created a "warranty" or a "contract" that MMS would be available, and that these agreements were breached. (FAC ¶¶ 93, 99, 102-103) Plaintiffs' "warranty" and "contract" claims thus are identical to their MMPA and negligent misrepresentation claims, and fail for the same reasons. Any purported "warranty" or "contract" created by Apple's advertising of MMS was not extended to plaintiff Storner, who purchased her iPhone 3G prior to any of Apple's representations alleged in the FAC. If plaintiff Lierman saw any of the Apple advertising alleged in the FAC, she also saw the timing disclosure contained in the advertising. Accordingly, such advertising could not have created any "warranty" or "contract" that MMS would be available before late summer. Further, if Apple's advertising created any "warranty" or "contract" regarding MMS -- and it did not -- that "warranty" or "contract" was that MMS would be available in late summer 2009. And so it was. There was no breach, as is clear from the full text of the Apple advertising identified in the FAC and filed herewith. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 525

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(1992) ("A manufacturer's liability for breach of an express warranty derives from, and is measured by, the terms of that warranty."). Plaintiffs' warranty and contract claims are meritless and must be dismissed. B. Plaintiffs Fail to State a Claim for Breach of Express Warranty.

To state a claim for breach of an express warranty under Missouri law, a plaintiff must plead the following: "[(1) that] there was a sale of goods, [(2)] the seller made a statement of fact about the kind or quality of those goods, [(3)] the statement of fact was a material factor inducing the buyer to purchase the goods, [(4)] the goods did not conform to that statement of fact, [(5)] the nonconformity injured the buyer, and [(6)] the buyer notified the seller of the nonconformity in a timely fashion." Stefl v. Medtronic, Inc., 916 S.W.2d 879, 882-83 (Mo. Ct. App. 1996); see also Mo. Rev. Stat. §§ 400.2-313(1)(a), (b); 400-2.607(3)(a); Gannon Joint Venture Ltd. P'ship v. Masonite Corp., No. 4:07-CV-1242 JCH, 2008 U.S. Dist. LEXIS 39038, at *6-7 (E.D. Mo. May 14, 2008) (citing Stefl). Plaintiffs' breach of warranty claims fail for at least two reasons. First, plaintiffs have not pled the existence of a "statement of fact" that could have created an express warranty with regard to MMS on their iPhones. Second, plaintiffs have not pled that they provided Apple with notice of alleged defects in their iPhones. 1. Plaintiffs Have Not Pled the Existence of an Express Warranty Regarding MMS Availability.

To allege that an express warranty was created, plaintiffs must allege an "affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain." Mo. Rev. Stat. § 400-2.313(1)(a); In re Bisphenol-A, 687 F. Supp. 2d at 905 (dismissing breach of express warranty claim under Rule 12(b)(6) for failure to plead affirmation of fact or promise). Iqbal demands that plaintiffs allege some "affirmation of fact or promise" that was made specifically to them and thus could have created an express warranty. See id. "[S]tatements made in general or to people other than the buyer" are not enough. Id. at 906. Plaintiffs here do not allege any particular "affirmation of fact or promise" concerning MMS that they actually saw or heard. That is fatal to their warranty claim.

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The same pleading failure also defeats any suggestion that Apple communications concerning MMS became "part of the basis of the bargain." In re Bisphenol-A, 687 F. Supp. 2d at 906 (a "representation cannot be part of the `bargain' if the other party to the bargain did not know the representation was made"); see also Smith v. Brown & Williamson Tobacco Corp., No. 96-0459-CV-W-3, 1999 U.S. Dist. LEXIS 21990, at *27 (W.D. Mo. Jan. 29, 1999) (granting summary judgment where plaintiff disavowed any personal knowledge of contents of statements alleged to have created express warranty). "Merely alleging a representation became part of the bargain does not satisfy Iqbal." In re Bisphenol-A, 687 F. Supp. 2d at 906. Finally, even if plaintiffs had seen or heard the advertisements at issue, they would also have seen or heard the disclosures clearly stating that MMS would be available in the future. Thus, they would have been expressly informed by Apple that the immediate availability of MMS was not "part of the basis of the bargain." 2. Plaintiffs' Failure to Notify Apple and Return Their iPhones Bars Their Express Warranty Claims.

To state a viable warranty claim under the Missouri Uniform Commercial Code ("UCC") provisions regarding express warranties, plaintiffs must plead that they provided notice within a reasonable time of discovering the alleged breach. Mo. Rev. Stat. § 400-2.607(3)(a). Notice of the alleged breach of warranty to the seller is a prerequisite to an express warranty claim. Plaintiffs' warranty claim fails for lack of notice. See W. Extralite Co. v. Safeco Ins. Co., 301 S.W.3d 527, 532 (Mo. Ct. App. 2009) (failure to provide notice within reasonable time barred claim for damages from breach of warranty). Apple offers a return right for its iPhones. Yet nowhere in the FAC do plaintiffs allege that they contacted Apple or ATTM to try to return their iPhones because MMS was not yet functional. Nor do plaintiffs allege they notified Apple of the alleged breach within a "reasonable" time. The fact that MMS was not yet enabled on their iPhones would have been immediately apparent when they attempted to text a picture. Plaintiffs, however, have had their iPhones for over a year but have never contacted Apple about MMS or returned their iPhones. (FAC ¶¶ 13 (Storner purchased an iPhone 3G in March 2009),

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14 (Lierman purchased an iPhone 3GS in the first week of July 2009)) Therefore, they cannot establish the statutorily mandated notice of the alleged breach within a reasonable time. Under similar circumstances, the Northern District of Alabama dismissed an express warranty claim with prejudice for this precise reason under an identical Alabama UCC provision.15 Smith v. Apple Inc., No. 08-AR-1498-S, 2008 U.S. Dist. LEXIS 111777, at *4 (N.D. Ala. Nov. 4, 2008) ("Nowhere in their amended complaint do plaintiffs allege that they provided Apple notice of the alleged breach."). The Smith court rejected the plaintiffs' argument that Apple's alleged "general awareness" of alleged issues with the iPhone 3G satisfied the UCC's notice requirement. Id. at *5 (dismissing express and implied warranty claims with prejudice because "a general awareness on Apple's part of alleged defects in its iPhone does not extinguish the purposes of the notice requirement, nor does it substitute for that requirement"). For the same reasons, plaintiffs' express warranty claim here must be dismissed. C. Plaintiffs Fail to State a Claim for Breach of Contract.

To state a claim for breach of contract under Missouri law, a plaintiff must allege: "(1) the making and existence of a valid and enforceable contract between [plaintiff] and [defendant]; (2) the right of [plaintiff] and the obligation of [defendant] under the contract; (3) a violation of the contract by [defendant]; and (4) damages resulting to [plaintiff] from the breach." Grobe, 679 F. Supp. 2d at 1028 (E.D. Mo. 2010) (citing Trotter's Corp. v. Ringleader Rests., Inc., 929 S.W.2d 935, 941 (Mo. Ct. App. 1996)). Plaintiffs here fail to allege a valid and enforceable contract containing the terms they allege were breached. Plaintiff Storner's claim fails for the additional reason that she has no privity of contract with Apple.

The portion of Alabama's Commercial Code at issue in Smith is identical to Missouri Revised Statute § 400-2.607(3)(a). See Ala. Code § 7-2-607(3)(a) ("Where a tender has been accepted . . . (a) [t]he buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy.").

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1.

Plaintiffs Fail to Plead the Existence of a Contract or Its Breach.

Plaintiffs do not plead the existence of any contract with Apple. Rather, their "contract" claim simply repeats the vague allegation that Apple "expressly and/or impliedly promised Plaintiffs that the iPhone 3G and iPhone 3GS . . . included MMS." (FAC ¶ 93) Not only is this bare allegation insufficient to plead a contract, but, contrary to this conclusory assertion, plaintiffs do not identify any Apple communications concerning MMS that they actually saw or heard. Plaintiffs thus have failed to allege any facts showing that Apple made any express or implied promises to them, and accordingly have failed to allege the existence of a contract. Further, to be enforceable, the essential terms of the alleged contract must be certain and definite. See, e.g., Midwest Special Surgery, P.C. v. Anthem Ins. Cos., No. 4:09-CV-646 TIA, 2010 U.S. Dist. LEXIS 16403, at *19 (E.D. Mo. Feb. 24, 2010) (dismissing under Rule 12(b)(6) where "Plaintiffs make only vague allegations as to the `terms' of the alleged contract"); Olathe Millwork Co. v. Dulin, 189 S.W.3d 199, 203 (Mo. Ct. App. 2006) ("No contract is formed when the terms of agreement are unduly uncertain and indefinite.") (quotations and citation omitted). The bare allegations set forth in paragraph 93 of the FAC do not meet this standard.16 Finally, Apple's advertisements regarding MMS consistently disclosed that MMS would be available in late summer. And so it was. Accordingly, even had a "contract" been created, it was not breached. 2. Lack of Privity Bars Storner's Claim Against Apple.

Plaintiff Storner's breach of contract claim against Apple fails for the additional reason that she has not established, and cannot establish, privity of contract with Apple. Plaintiff Storner alleges she purchased her iPhone 3G from ATTM, not Apple. (FAC ¶ 13) Without privity, there can be no claim for breach of contract. See, e.g., RGB2, Inc. v. Chestnut Plaza, Inc., 292 S.W.3d 409, 412 (Mo. Ct. App. 2009) ("Missouri law requires that in order for a party

16

For the same reason, plaintiffs have also failed to allege an offer by Apple.

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to bring a lawsuit on a contract, that party must either be a party to the contract or in privity to the contract."). D. Plaintiffs Fail to Plead the Existence of An Implied Covenant of Good Faith and Fair Dealing.

Plaintiffs' failure to state a claim for breach of contract is also fatal to their claim for breach of the implied covenant of good faith and fair dealing, which requires the existence of a contract. See Midwest Special Surgery, 2010 U.S. Dist. LEXIS 16403, at *20-21 (dismissing claim for breach of the implied covenant of good faith and fair dealing where "[p]laintiffs have not properly alleged a contract between the parties"); Danella Sw., Inc. v. Sw. Bell Tel. Co., 775 F. Supp. 1227, 1236 (E.D. Mo. 1991) ("A claim based on a breach of good faith and fair dealing presupposes that a contractual right existed between the parties."). IV. PLAINTIFFS FAIL TO STATE A CLAIM FOR UNJUST ENRICHMENT. "To state a claim for unjust enrichment, plaintiffs must show: (1) that the defendant was enriched by the receipt of a benefit; (2) that the enrichment was at the expense of the plaintiff; and (3) that it would be unjust to allow the defendant to retain the benefit." Dubinsky v. Mermart, LLC, No. 4:08-CV-1806 (CEJ), 2009 U.S. Dist. LEXIS 31992, at *15 (E.D. Mo. Apr. 15, 2009) (quoting Exec. Bd. of Mo. Baptist Convention v. Windermere Baptist Conference Ctr., 280 S.W.3d 678, 697 (Mo. App. 2009)), aff'd, 595 F.3d 812 (8th Cir. 2010). "Mere receipt of benefits is not enough, absent a showing that it would be unjust for the defendant to retain the benefit." Id. (quoting Miller v. Horn, 254 S.W.3d 920, 924 (Mo. App. 2008)). Plaintiffs' unjust enrichment claim fails because they have not pled facts demonstrating that it would be unjust to allow Apple to retain any benefit conferred by plaintiffs. Plaintiffs offer only the conclusory allegation that "[i]t is unjust to allow Defendants to retain the profits from their deceptive, misleading and unlawful conduct." (FAC ¶ 109) But as demonstrated above, plaintiffs have not pled a single instance of deceptive, misleading, or unlawful conduct by Apple. On the contrary, Apple consistently disclosed when MMS would become available. Accordingly, plaintiffs' unjust enrichment claim must be dismissed.

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CONCLUSION For the reasons set forth above, Apple respectfully requests that the Court grant its motion to dismiss with prejudice each of the causes of action alleged against Apple in plaintiffs' First Amended and Supplemental Complaint. Respectfully submitted, IRWIN FRITCHIE URQUHART & MOORE LLC

By: /s/ Quentin F. Urquhart QUENTIN F. URQUHART, JR. (#14475) DOUGLAS J. MOORE (#27706) 400 Poydras Street, Suite 2700 New Orleans, Louisiana 70130 Telephone: [phone] Facsimile: [phone] and PENELOPE A. PREOVOLOS (admitted pro hac vice) ANDREW MUHLBACH (admitted pro hac vice) HEATHER A. MOSER (admitted pro hac vice) MORRISON & FOERSTER, LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: [phone] Facsimile: [phone] Counsel for Defendant Apple Inc.

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing pleading has been electronically filed and served upon all known counsel of record by electronic service and/or U. S. mail, properly addressed, this the 10th day of August, 2010.

/s/ Quentin F. Urquhart

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