Ohanian et al v. Apple Inc. et al

Filing 122

ORDER denying as moot 110 Motion to Dismiss; denying as moot 112 Motion to Dismiss; denying as moot 114 Motion re: 110 MOTION to Dismiss the Complaint., 112 MOTION to Dismiss and Strike Plaintiff Tigran Ohanian's Claim. , 114 MOTION to take Judicial Notice re: 112 MOTION to Dismiss and Strike Plaintiff Tigran Ohanian's Claims., 113 Memorandum of Law in Support of Motion Defendant Apple Inc.'s Request for Judicial Notice in Support of its , 121 LETTER MOTION for Conference re Leave to Amend Complaint addressed to Judge Lorna G. Schofield from Aaron J. Solomon dated January 14, 2022. ; granting in part and denying in part 121 Letter Motion for Conference re: 110 MOTIO N to Dismiss the Complaint., 112 MOTION to Dismiss and Strike Plaintiff Tigran Ohanian's Claims., 114 MOTION to take Judicial Notice re: 112 MOTION to Dismiss and Strike Plaintiff Tigran Ohanian's Claims, [1 13] Memorandum of Law in Support of Motion Defendant Apple Inc.'s Request for Judicial Notice in Support of its, 121 LETTER MOTION for Conference re Leave to Amend Complaint addressed to Judge Lorna G. Schofield from Aaron J. Sol omon dated January 14, 2022. Application GRANTED IN PART, DENIED IN PART. Plaintiffs' motion is denied as to the additional allegations for Plaintiff Lopez's claims against Apple because some of Lopez's claims survived Apple's motion to dismiss and Lopez does not intend to add new claims. The motion is granted as to Lopez's conforming to the Opinion and Order on Apple's motion to dismiss and as to Plaintiff Ohanian's changes. Plaintiffs shall file an amend ed complaint consistent with this Order by January 19, 2022. The pending motions to dismiss and related motion to take judicial notice are denied as moot. By January 21, 2022, if Defendant T-Mobile seeks to file a renewed motion to dismiss, Defenda nt T-Mobile and Plaintiff Ohanian shall file a joint letter proposing an expedited briefing schedule. The Clerk of Court is respectfully directed to close the motions at Dkt. Nos. 110, 112, 114 and 121.. (Signed by Judge Lorna G. Schofield on 1/18/2022) (mml)

Case 1:20-cv-05162-LGS Document 122 Filed 01/18/22 Page 1 of 3

Application GRANTED IN PART, DENIED IN PART. Plaintiffs' motion is denied as to the additional
allegations for Plaintiff Lopez's claims against Apple because some of Lopez's claims survived Apple's motion
to dismiss and Lopez does not intend to add new 14, 2022 The motion is granted as to Lopez's conforming to
January claims.
the Opinion and Order on Apple's motion to dismiss and as to Plaintiff Ohanian's changes. Plaintiffs shall file
an amendedECF
VIA complaint consistent with this Order by January 19, 2022. The pending motions to dismiss and
related motion to take Schofield
Hon. Lorna G. judicial notice are denied as moot. By January 21, 2022, if Defendant T-Mobile seeks
to file a renewed motion to dismiss, Defendant T-Mobile and Plaintiff Ohanian shall file a joint letter proposing
United States District Court
an expedited briefing schedule. York
Southern District of New
500 Pearl Street
New York, is respectfully directed to close the motions at Dkt. Nos. 110, 112, 114 and 121.
The Clerk of Court New York 10007
Dated: January 18, 2022
New York, New York
Re:

Ohanian, et. al. v. Apple Inc., et al.
Case No. 1:20-cv-05162 (LGS)

Dear Judge Schofield:
This law firm represents Plaintiffs Tigran Ohanian (“Ohanian”) and Regge Lopez (“Lopez”)
in the above-referenced action. Pursuant to Rule III.A of the Court’s Individual Rules and Procedures,
we respectfully submit this letter motion requesting a pre-motion conference concerning Plaintiffs’
anticipated motion seeking leave to amend Plaintiffs’ complaint (the “Complaint”).
This is Plaintiffs’ first request to amend the Complaint. Plaintiffs attempted to secure consent
from Defendants Apple Inc. (“Apple”) and T-Mobile USA, Inc. (“T-Mobile”) concerning the
proposed amendments, which do not add any new claims or parties.1 T-Mobile does not consent to
the proposed amendments whereas Apple has given consent to some, but not all, of the proposed
amendments.
Procedural Background
As the Court is aware, this is a putative class action brought to redress deceptive acts and
practices and material omissions by (i) Apple regarding the data privacy and security of its mobile
devices, namely the iPhone and the iMessage and FaceTime features of the iPhone; and (ii) T-Mobile
relating to its subscriber identification modules (“SIM cards”), by which it provides
telecommunications services to consumers through the iPhone. Specifically, the Complaint alleges
that Apple and T-Mobile’s failures to disclose to their respective consumers the need to manually
disassociate users’ Apple IDs from telephone numbers associated with discarded and/or expired SIM
cards wrongfully exposes consumers to receiving private calls, texts, photographs, and videos though
iMessage and FaceTime, and the unknown misdirection of such calls, texts, photographs, and videos
to unintended recipients.
Ohanian and Lopez both originally asserted claims against Apple and T-Mobile for violations
of New York General Business Laws (“NY GBL”) 349 and 350, fraudulent inducement, and unjust
enrichment. Apple and T-Mobile moved to compel arbitration with both Ohanian and Lopez shortly
after this action was filed. Dkt. 30-32, 33-34.
1

The parties alerted the Court to a potential amendment to the Complaint in the December 21, 2021 joint status letter.

Case 1:20-cv-05162-LGS Document 122 Filed 01/18/22 Page 2 of 3
Hon. Lorna G. Schofield
January 14, 2022
Page 2 of 3

On October 23, 2020, Lopez voluntarily dismissed his claims against T-Mobile, mooting TMobile’s motion to compel arbitration with him. Dkt. 44. On March 9, 2021, following briefing, the
Court issued an order (i) denying Apple’s motion to compel arbitration with Lopez; and (ii) reserving
ruling on Apple and T-Mobile’s motions to compel arbitration with Ohanian. Dkt. 52.
Thereafter, following limited discovery, a trial was held to resolve Apple and T-Mobile’s
motions to compel arbitration with Ohanian. In the interim, the parties briefed Apple’s motion to
dismiss Lopez’s claims. On October 24, 2021, the Court denied Apple and T-Mobile motions to
compel arbitration with Ohanian. Dkt. 97. On November 16, 2021, the Court issued an opinion and
order on Apple’s motion to dismiss Lopez’s claims, sustaining Lopez’s claims against Apple for
alleged violations of NY GBL 349 and 350.
Apple and T-Mobile’s Motions to Dismiss
On November 1, 2021, the Court entered a Second Amended Civil Case Management Plan
and Scheduling Order that, inter alia, included a briefing schedule on anticipated motions to dismiss
Ohanian’s claims to be filed by Apple (the “Apple Motion”) and T-Mobile (the “T-Mobile Motion”).
Dkt. 103. Both Apple and T-Mobile filed their moving papers on December 1, 2021. Dkt. 110-111,
112-115.
A.

The T-Mobile Motion

In the T-Mobile Motion, T-Mobile argues, inter alia, that Ohanian’s NY GBL 349 and 350
claims and fraudulent inducement claim should be dismissed because the Complaint does not
adequately allege that T-Mobile had knowledge of the alleged defect in the iPhone’s iOS software
that allowed iMessage correspondence sent by iPhone users and FaceTime calls made by iPhone users
to be improperly directed to and accessed by third parties without the users’ knowledge or
authorization (the “Security Flaw”). T-Mobile also argues that Ohanian’s NY GBL 349 and 350
claims are time-barred.
In response, Ohanian seeks to amend the Complaint to address T-Mobile’s contentions and
amplify the factual allegations supporting those claims. A copy of the proposed amended complaint
in redline is attached hereto as Exhibit A.2 T-Mobile does not consent to the proposed amendment.
B.

The Apple Motion

Based on arguments raised in the Apple Motion, Ohanian intends to voluntarily discontinue
his individual claims against Apple pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). Apple consents to the
foregoing, which will moot the Apple Motion. Ohanian’s voluntary dismissal of his claims against
Apple has no impact on Lopez’s pending claims against Apple for violations of NY GBL 349 and
350 which, as discussed, already withstood a motion to dismiss.
In addition to amplifying the Complaint’s factual allegations to address contentions in the TMobile Motion, the proposed amendments to the Complaint also amplify Lopez’s factual allegations
The proposed amended complaint also conforms to the Court’s Order on Apple’s motion to dismiss Lopez’s claims by
removing Lopez’s previously-asserted claims for fraud and unjust enrichment against Apple. See Ex. A.
2

Case 1:20-cv-05162-LGS Document 122 Filed 01/18/22 Page 3 of 3
Hon. Lorna G. Schofield
January 14, 2022
Page 3 of 3

concerning his NY GBL 349 and 350 claims against Apple. Apple has not yet responded to Plaintiffs’
request for consent to those amendments.
The Court Should Grant Plaintiffs Leave to Amend the Complaint
Under Fed. R. Civ. P. 15, which governs amendments to pleadings, a party may amend his
pleading by leave of court or by written consent of the adverse party, and leave should be freely given
when justice so requires. See Fed. R. Civ. P. 15(a)(2). Where a plaintiff seeks to amend its complaint
while a motion to dismiss is pending, a court “may either deny [the] pending motion to dismiss as
moot or consider the merits of the motion, analyzing the facts as alleged in the amended pleading.”
See Trott v. Deutsche Bank, AG, 2021 U.S. Dist. LEXIS 89754, at *3 (S.D.N.Y. May 11, 2021) (citing
Pettaway v. Nat’l Recovery Sols., LLC, 955 F.3d 299, 303 (2d Cir. 2020)). In such a scenario, the
preferred course of action is to grant the plaintiff leave to amend and to deny the pending motion to
dismiss as moot. Trott, 2021 U.S. Dist. LEXIS 89754, at *3-4; Cotto v. Fannie Mae, 2021 U.S. Dist.
LEXIS 181091, at *11 (S.D.N.Y. Sept. 22, 2021) (same). Here, the Court should grant Plaintiffs
leave to amend the Complaint because, inter alia, it will cure certain alleged pleading deficiencies
identified by T-Mobile, and there will be no prejudice to either T-Mobile or Apple.3
Further, allowing an amendment to the Complaint would promote the interests of judicial
economy since, as the Second Circuit and Your Honor have recognized, the usual practice upon
granting a motion to dismiss is to allow leave to replead. See Ronzani v. Sanofi S.A., 899 F.2d 195,
198 (2d Cir. 1990); Hirsch v. 725 Assocs., 2014 U.S. Dist. LEXIS 112716, at *5 (S.D.N.Y. Aug. 13,
2014) (Schofield, J.) (same). Indeed, it would be wasteful for the parties to fully brief the T-Mobile
Motion and, in the event that any of Ohanian’s claims are dismissed, address potential amendments
to the Complaint thereafter, only to go through yet another round of briefing on a subsequent motion
to dismiss by T-Mobile.
Based on the foregoing, Plaintiffs also respectfully request that the Court stay the pending
briefing schedule on the T-Mobile Motion – under which Ohanian’s opposition is due on January 21,
2022 and T-Mobile’s reply is due on February 4, 2022 – until a determination is made concerning the
request to amend the Complaint.
We thank the Court for its time and attention to this matter.
Respectfully submitted,

Aaron J. Solomon
cc: All counsel (via ECF)
An amendment is prejudicial if it would “require the opponent to expend significant additional resources to conduct
discovery and prepare for trial” or “significantly delay resolution of the dispute.” See, e.g., Block v. First Blood Assocs.,
988 F.2d 344, 350 (2d Cir. 1993). Those concerns are not implicated here, because (i) Ohanian is not seeking to assert
any new causes of action against T-Mobile that will require additional discovery; and (ii) the only “delay” to date arose
from T-Mobile’s filing of a motion to compel arbitration with Ohanian, which took over one (1) year to resolve due to
extended briefing, discovery, and a bench trial; and (iii) the proposed amendments as to Lopez’s claims against Apple
merely amplify factual allegations concerning his NY GBL 349 and 350 claims – which withstood dismissal – and Apple
has not yet filed an answer to the pending Complaint.
3