Christensen et al v. Apple Inc.

Filing 13

ANSWER to 1 Complaint, by Apple Inc..(Hecker, Dustin)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
ADAM CHRISTENSEN,JEFFREY
SCOLNICK,and WILLIAM FARRELL,on
behalf of themselves and all others similarly
situated,

Case No. 1:14-cv-10100

Plaintiffs,
v.
APPLE INC.,
Defendant.

APPLE INC.'S ANSWER TO COMPLAINT
Defendant Apple Inc. answers as follows the allegations set forth in Plaintiffs Adam
Christensen, Jeffrey Scolnick, and William Farrell's Class Action Complaint. With respect to
the preamble under the heading "Class Action Complaint," Apple admits that Plaintiffs purport
to bring this putative class action against Apple. Apple lacks knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in the preamble, and on that
basis denies those allegations. With respect to various headings throughout the Complaint, to the
extent Plaintiffs purport to make any allegations through those headings, Apple denies such
allegations.
I.

NATURE OF THE ACTION

Apple admits that Plaintiffs purport to summarize, interpret, or state the content of
Mass. Gen. Laws ch. 93 § 105(a)in Paragraph 1 ofthe Complaint. Apple denies any
characterization ofthe statute that is inconsistent with its content.
2.

Apple admits that Paragraph 2 ofthe Complaint is an accurate, but incomplete,

quotation of Mass. Gen. Laws ch. 93 § 105(a).

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3.

Apple denies the allegations in Paragraph 3 of the Complaint.

4.

Apple admits that Plaintiffs purport to bring a putative class action and to seek the

relief identified in Paragraph 4 of the Complaint, but denies that such class treatment or relief is
appropriate or warranted.
II.

JURISDICTION AND VENUE

Apple admits that Plaintiffs have sufficiently alleged that this Court has
jurisdiction pursuant to 28 U.S.C. § 1332(d), but denies that Plaintiffs are entitled to any
monetary recovery.
6.

Apple admits that it is registered to do business in Massachusetts and operates

Apple retail stores in Massachusetts. Apple admits that Plaintiffs have sufficiently alleged that
this Court has personal jurisdiction over Apple.
7.

Apple admits that it is registered to do business in Massachusetts and operates

Apple retail stores in Massachusetts. Apple admits that Plaintiffs have sufficiently alleged venue
in this District. Apple denies the remaining allegations in Paragraph 7 of the Complaint.
III.

PARTIES

Apple lacks knowledge or information sufficient to form a belief as to the truth of
the allegations regarding Plaintiff Adam Christensen's residence, and on that basis denies those
allegations.
Apple lacks knowledge or information sufficient to form a belief as to the truth of
the allegations regarding Plaintiff Jeffrey Scolnick's residence, and on that basis denies those
allegations.
10.

Apple lacks knowledge or information sufficient to form a belief as to the truth of

the allegations regarding Plaintiff William Farrell's residence, and on that basis denies those
allegations.
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11.

Apple admits that it is a California corporation and that it maintains its principal

place of business in Cupertino, California. Apple admits that it conducts business in
Massachusetts. Apple denies the remaining allegations in Paragraph 11 of the Complaint,to the
extent Plaintiffs' allegations imply that Apple operates one or more retail stores in each and
every state in the United States of America.
IV.
12.

FACTUAL BACKGROUND

Apple admits that its records reflect that Plaintiff Adam Christensen engaged in

purchase transactions on July 10, 2012, at an Apple retail store located in Chestnut Hill,
Massachusetts. Apple admits that its records reflect that Plaintiff Adam Christensen engaged in
transactions on February 18, 2013 and March 11, 2013 at an Apple retail store located in
Peabody, Massachusetts. Apple lacks knowledge or information sufficient to form a belief as to
the truth of the remaining allegations in Paragraph 12 of the Complaint, and on that basis denies
those allegations.
13.

Apple admits that its records reflect that Plaintiff Jeffrey Scolnick engaged in

purchase transactions on September 20, 2012, September 21, 2012, and November 2, 2012 at an
Apple retail store located in Natick, Massachusetts. Apple lacks knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in Paragraph 13 of the
Complaint, and on that basis denies those allegations.
14.

Apple admits that its records reflect that Plaintiff William Farrell engaged in a

purchase transaction on November 25, 2012, at an Apple retail store located in Dedham,
Massachusetts. Apple lacks knowledge or information sufficient to form a belief as to the truth
of the remaining allegations in Paragraph 14 of the Complaint, and on that basis denies those
allegations.

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15.

Based on its investigation to date, Apple admits that Plaintiffs used credit cards to

complete the transactions identified in Paragraphs 12-14 of the Complaint.
16.

Apple denies the allegations in Paragraph 16 of the Complaint.

17.

Apple denies the allegations in Paragraph 17 of the Complaint.

18.

Apple denies the allegations in Paragraph 18 of the Complaint.

19.

Apple admits that Plaintiffs purport to summarize, interpret, or state the content of

the referenced Massachusetts Supreme Judicial Court decision in Tyler v. Michaels Stores, Inc.,
2013 Mass. LEXIS 40(2013) regarding Mass. Gen. Laws ch. 93 § 105(a) in Paragraph 19 of the
Complaint. Apple denies any characterization of that decision that is inconsistent with its
content.
20.

Apple admits that the statement quoted in Paragraph 20 of the Complaint appears

on Apple's website. Apple denies any characterization of that statement that is inconsistent with
its content. Apple denies the remaining allegations in Paragraph 20 of the Complaint.
21.

Apple admits that Plaintiffs purport to summarize, interpret, or state the content of

a statement purportedly made by former Federal Trade Commission("FTC") Commissioner
Orson Swindle at a "workshop" in Paragraph 21 of the Complaint. Apple denies any
characterization of the statement that is inconsistent with its content. Apple lacks knowledge or
information sufficient to form a belief as to the truth of the statement and the remaining
allegations in Paragraph 21, and on that basis denies the allegations.
22.

Apple admits that Plaintiffs purport to summarize, interpret, or state the content of

an online Wall Street Journal article entitled Web's Hot New Commodity: Privacy in Paragraph
22 of the Complaint. Apple denies any characterization of the article that is inconsistent with the
article's content. Apple lacks knowledge or information sufficient to form a belief as to the truth

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of the article and remaining allegations in Paragraph 22 of the Complaint, and on that basis
denies those allegations.
23.

Apple admits that Plaintiffs purport to summarize, interpret, or state the content of

a statement purportedly made by former FTC Commissioner Pamela Jones Harbour at an FTC
"roundtable" in Paragraph 23 of the Complaint. Apple denies any characterization of the
statement that is inconsistent with its content. Apple lacks knowledge or information sufficient
to form a belief as to the truth of the statement and the remaining allegations in Paragraph 23,
and on that basis denies the allegations.
24.

Apple admits that Plaintiffs purport to summarize, interpret, or state the contents

of an online New York Times article entitled You Want My Personal Data? Reward Me For It
and an online Wall Street Journal article entitled Web's Hot New Commodity: Privacy in
Paragraph 24 of the Complaint. Apple denies any characterization of the articles that is
inconsistent with either article's respective content. Apple lacks knowledge or information
sufficient to form a belief as to the truth of the articles and the remaining allegations in
Paragraph 24, and on that basis denies the allegations.
25.

Apple admits that Plaintiffs purport to summarize, interpret, or state the contents

of an article entitled The Value ofOnline Information Privacy: An Empirical Investigation in
Paragraph 25 of the Complaint. Apple denies any characterization of the article that is
inconsistent with its content. Apple lacks knowledge or information sufficient to form a belief as
to the truth of the article and the remaining allegations in Paragraph 25, and on that basis denies
the allegations.
26.

Apple admits that Plaintiffs purport to summarize, interpret, or state the contents

of an article entitled The Effect ofOnline Privacy Information on Purchasiizg Behavior in

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Paragraph 26 of the Complaint. Apple denies any characterization of the article that is
inconsistent with its content. Apple lacks knowledge or information sufficient to form a belief as
to the truth of the article and the remaining allegations in Paragraph 26, and on that basis denies
the allegations.
27.

Apple admits that Plaintiffs purport to summarize, interpret, or state the contents

of an article entitled The Effect ofOnline Privacy Information on Purchasing Behavior in
Paragraph 27 of the Complaint. Apple denies any characterization of the article that is
inconsistent with its content. Apple lacks knowledge or information sufficient to form a belief as
to the truth of the article and the remaining allegations in Paragraph 27, and on that basis denies
the allegations.
V.
28.

CLASS ACTION ALLEGATIONS

Apple admits that Plaintiffs purport to bring a class action on behalf of themselves

and the putative class defined in Paragraph 28 of the Complaint, but denies that such class action
is appropriate or warranted in this case. Apple denies the remaining allegations in Paragraph 28
of the Complaint.
29.

Apple denies the allegations in Paragraph 29 of the Complaint.

30.

Apple denies the allegations in Paragraph 30 of the Complaint.

31.

Apple denies the allegations in Paragraph 31 of the Complaint, including subparts

(a)through (d).
32.

Apple denies the allegations in Paragraph 32 of the Complaint.

33.

Apple denies the allegations in Paragraph 33 of the Complaint.

34.

Apple denies the allegations in Paragraph 34 of the Complaint.

35.

Apple denies the allegations in Paragraph 35 of the Complaint.

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VI.

CLAIMS ALLEGED

(Violation of Massachusetts Unfair Trade Practices Act, Mass. Gen. Laws Ch.93A)
36.

Apple incorporates by reference its answers to Paragraphs 1-35 of the Complaint.

37.

Apple admits that Paragraph 37 of the Complaint is an accurate, but incomplete,

quotation of Mass. Gen. Laws ch. 93 § 105(a).
38.

Apple admits that it is a corporation that accepts certain credit cards for retail

transactions.
39.

Apple denies the allegations in Paragraph 39 of the Complaint.

40.

Apple admits that Paragraph 40 of the Complaint is an accurate, but incomplete,

quotation of Mass. Gen. Laws ch. 93 § 105(c).
41.

Apple denies the allegations in Paragraph 41 of the Complaint.

42.

Apple admits that Paragraph 42 of the Complaint is an accurate, but incomplete,

quotation of Mass. Gen. Laws ch. 93A § 9.
43.

Apple denies the allegations in Paragraph 43 of the Complaint.

44.

Apple denies the allegations in Paragraph 44 of the Complaint.

45.

Apple admits that it received a purported demand letter from unspecified

claimants, dated Apri124, 2013. Apple denies that a copy of the purported demand letter is
attached as Exhibit A to Plaintiffs Complaint. Apple denies that the purported demand letter
complied with the statutory requirements under Mass. Gen. Laws ch. 93A § 9 or fulfilled
Plaintiffs' requirements for a written demand letter under Mass. Gen. Laws ch. 93A § 9. Apple
admits that it did not accept the terms set forth in the April 24, 2013 demand letter. Apple denies
the remaining allegations in Paragraph 45 of the Complaint.
46.

Apple denies the allegations in Paragraph 46 of the Complaint.

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47.

Apple denies the allegations in Paragraph 47 of the Complaint.
VII.

48.

REQUEST FOR RELIEF

Apple admits that Plaintiffs seek the relief set forth on page 11 of the Complaint,

but denies that Plaintiffs are entitled to any of the requested relief, including the relief requested
in subparts(a) through (i).
AFFIRMATIVE DEFENSES
Apple sets forth its further and separate defenses to the allegations in Plaintiffs'
Complaint as follows below. Apple reserves the right to assert any and all other defenses
pending the outcome of further investigation and discovery in this action.
FIRST AFFIRMATIVE DEFENSE
(Insufficient Pre-suit Demand)
Plaintiffs' claims are barred by Plaintiffs' failure to comply with the pre-suit
demand requirements of Mass. Gen. Laws ch. 93A § 9(3). Section 9(3) requires that the demand
letter "identify [] the claimant and reasonably describe] the unfair or deceptive act or practice
relied upon and the injury suffered."
2.

The April 24, 2013 demand letter sent by Plaintiffs' counsel, however, did not

identify the claimants and failed to include any details regarding the alleged transactions) or the
claimants' alleged injuries.
SECOND AFFIRMATIVE DEFENSE
(Exception for Purpose Permissible by Statute/Safe Harbor)
3.

Plaintiffs' claims fail to the extent that Apple requested or required that Plaintiffs

or any member of the putative class provide personal identification information where
permissible under Mass. Gen. Laws ch. 93 § 105 and ch. 93A § 9. This includes, but is not
limited to, requesting or requiring such information as was necessary for shipping, delivery, or
installation of purchased merchandise or services or for a warranty when such information was
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provided voluntarily by a credit card holder (e.g., in connection with registration for an Apple
ID, registration for an iPhone, registration for AppleCare).
THIRD AFFIRMATIVE DEFENSE
(Standing)
4.

The Complaint is barred because Plaintiffs and the members of the putative class

lack standing to pursue any claim against Apple.
5.

At the time of the transactions alleged in the Complaint, Apple did not have a

policy to request or record ZIP codes in connection with credit card purchase transactions. As
such, Plaintiffs do not have standing.
6.

Plaintiffs and the members of the putative class further lack standing under Mass.

Gen. Laws ch. 93A § 9 to pursue any claim against Apple because they have not suffered an
injury as a result of Apple's alleged violation of Mass. Gen. Laws ch. 93 § 105(a).
7.

Plaintiffs were not injured by Apple's alleged violation of Section 105(a) within

the meaning of the statute and the Supreme Judicial Court's decision in Tyler v. Michaels Stores
Inc., 464 Mass. 492(2013), because Apple did not use customer ZIP code information to obtain
additional personal identification information, did not sell Plaintiffs' ZIP codes (or any other
personal identification information) to any third parties, and did not send targeted marketing
materials to Plaintiffs using information obtained via their ZIP codes or as a result of allegedly
requesting Plaintiffs' ZIP codes.
FOURTH AFFIRMATIVE DEFENSE
(Waiver/Estoppel)
8.

As a result of the acts, conduct, and/or omissions of the Plaintiffs and/or each of

their agents, the cause of action and claims for relief averred in the Complaint have been waived.
9.

Plaintiffs allege that they received unwanted marketing materials, but do not

allege any details regarding the nature of those marketing materials.
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10.

To the extent Plaintiffs received any unwanted marketing materials, Plaintiffs did

not take any steps to mitigate any purported harm from receiving any such marketing materials.
For example, on information and belief, Plaintiffs did not contact Apple to request to be removed
from any distribution list for marketing materials, if one existed, during the relevant period.
FIFTH AFFIRMATIVE DEFENSE
(Consent or Ratification)
11.

On information and belief, Plaintiffs voluntarily provided their personal

identification information (e.g., in connection with registration for an Apple ID, registration for
an iPhone, registration for AppleCare), and by doing so, consented to or ratified the conduct
alleged in the Complaint.
SIXTH AFFIRMATIVE DEFENSE
(Statute of Limitations)
12.

Plaintiffs' purported cause of action and claims for relief asserted therein on

behalf of a class of persons similarly situated is barred, in whole or in part, by the applicable
statutes of limitations, including, but not limited to Mass. Gen. Laws ch. 93A and ch. 260 § SA.
13.

Plaintiffs' proposed class definition lacks any limitation based on the date of the

alleged violations, and thus any alleged violation for any class member that occurred outside the
applicable statutes of limitations would be barred.
SEVENTH AFFIRMATIVE DEFENSE
(Failure to Mitigate Damages)
14.

If Plaintiffs have suffered damages by virtue of any conduct, act, or omission of

Apple, which Apple denies, Plaintiffs have failed to mitigate such damage(s).
15.

For example, Plaintiffs allege that they received unwanted marketing materials,

but do not allege any details regarding the nature of those marketing materials or identify any
efforts to stop receiving those marketing materials.

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16.

To the extent Plaintiffs received any unwanted marketing materials, Plaintiffs did

not take any steps to mitigate any purported harm from receiving any such marketing materials.
For example, on information and belief, Plaintiffs did not contact Apple to request to be removed
from any distribution list for marketing materials during the relevant period.
PRAYER FOR RELIEF
WHEREFORE, Apple requests relief as follows:
1.

That Plaintiffs and members of the purported class take nothing by the Complaint;

2.

That the Court enter judgment in favor of Apple;

3.

That the Court award Apple its reasonable expenses, attorneys' fees, and costs of

4.

That, pursuant to Mass. Gen. Laws ch. 231 § 6F, after a hearing and as a separate

suit;

and distinct finding, the Court find that all or substantially all ofthe claims of Plaintiffs were
wholly insubstantial, frivolous, and not advanced in good faith and that the Court thereupon
award Apple its reasonable costs, expenses, and attorneys' fees incurred in connection with this
action; and
S.

For such other and further relief as the Court deems just and proper.

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Dated: March 13, 2014

Respectfully submitted,
APPLE INC.,
By its attorneys,
/s/ Dustin F. Hecker
David F. Hecker, BBO # 549171
POSTERNAK BLANKSTEIN & LUND LLP
The Prudential Tower
800 Boylston Street, 33rd Floor
Boston, MA 02199
Telephone: [phone]
Facsimile: 617.722.7927
[e-mail]
Of Counsel:
David M. Walsh(CA Bar No. 120761)
(pro hac vice application pending)
Purvi G. Patel(CA Bar No. 270702)
(pro hac vice application pending)
Adam M. Sevell(CA Bar No. 266428)
(pro hac vice application pending)
MORRISON & FOERSTER LLP
707 Wilshire Boulevard, Suite 6000
Los Angeles, CA 90017-3543
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]

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CERTIFICATE OF SERVICE
I, Dustin F. Hecker, do hereby certify that on this 13`h day of March, 2014, a true copy of
the foregoing document was served upon all counsel of record via the CM/ECF system.
/s/ Dustin F. Hecker
Dustin F. Hecker, Esq.

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