Kim et al v. Apple, Inc.

Filing 1

COMPLAINT against Apple, Inc. (Filing fee $ 400 receipt number 0541-11541944) filed by Lillian Kim. (Attachments: # 1 Civil Cover Sheet)(Rosales, Omar)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
McALLEN DIVISION

LILLIAN KIM, SIRIA LUCKEY,
DAVID DEBURRO, and others
similarly situated
Plaintiffs
VS.
APPLE, INC.,
Defendant

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CIVIL ACTION NO. 7:13-CV-286

CLASS ACTION COMPLAINT
(JURY DEMAND)

CLASS ACTION COMPLAINT
TO THE HONORABLE U.S. DISTRICT JUDGE:

COME NOW, Lillian Kim, Siria Luckey, and David Deburro (“Plaintiffs”), by
and through their attorneys, and bring this action on behalf of themselves and all others
similarly situated against Apple, Incorporated (“Apple” or “Defendant”). Plaintiffs
hereby allege, on information and belief, except as to those allegations pertaining to the
named Plaintiffs, which allegations are based on personal knowledge, as follows:
I.
NATURE OF THE ACTION
1.

Plaintiffs bring this class action on behalf of purchasers of Apple’s

“Operating System X, Version 10.8” (known as Mountain Lion) in Texas and throughout
the United States.

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2.

The Mountain Lion operating system was represented to be, “The world’s

most advanced desktop operating system gets even better.” The subject operarting
system was also noted to, “Make the Mac, iPad, and iPhone work even better together.”
Furthermore, iCloud was represented as, “It just works. In more ways than ever.” And,
“It keeps your mail, calendars, contacts, reminders, documents, notes, and more up to
date wherever you use them. So when you add, delete, or change something on your Mac,
it also happens automatically on your iPad, iPhone, and iPod touch. And vice versa. You
don’t have to do anything at all — iCloud is automatic.” See http://www.apple.com/osx/
and http://www.apple.com/osx/whats-new/.
3.

The iCloud software is part of the ensemble of software touted in the new

Mountain Lion upgrade. However, the iCloud software is not fit for the ordinary
purposes (remotely accessing cloud data, saving data to the cloud, file backup, user login,
and iTunes accessibility) for which it was intended. Instead, the iCloud software –
because it was negligently designed, produced, and tested – prematurely fails to work and
causes users to lose data, fails to backup data automatically, deletes user accounts,
renders user accounts inaccessible, and loses user’s songs purchased on iTunes. As
iCloud software is the only automatic means on the Mountain Lion operating system to
access and modify remotely stored data, the Mountain Lion operating system does not
have the intrinsic ability to access and modify remotely stored data without the iCloud
component. As the iCloud software fails, a portion of the Mountain Lion operating
system fails, thus rendering a portion of the new operating system useless. Furthermore,
users have reported losing remotely stored data completely, erasure of data on their own
desktop harddrives, and inability to access the user accounts maintained by Apple.

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Apple is and was aware of this substantial defect, but it failed to disclose it or
warn Plaintiffs and the Class of the defect. As of the date of this filing, it continues to
market and sell the defective Mountain Lion operating system, resulting in continuing
damage to the Class. In some instances, Apple has attempted to hide the defect by
refusing to answer customer service calls on its Apple Care telephone support line and
not addressing the software defect on customer support websites. This cover-up shows
that Apple had knowledge of the defect, yet willfully and intentionally decided to hide
the defect, resulting in continuing damage to the Class.
Furthermore, if a consumer calls Apple Customer Care in Cupertino, California,
consumers are told that the software defects are “being addressed” and that the “bugs are
only temporary.” As a result, Plaintiffs and the Class (which likely number in the
millions) have purchased flawed a Mountain Lion operating system, which prematurely
fails and limit the functionality of the operating system.

4.

Plaintiffs bring this class action on behalf of themselves and all others

similarly situated, asserting claims as Fraud under Texas Common Law, violations of the
Texas Deceptive Trade Practices Act, violations of the California Unfair Competition
Law, violations of the California Consumers Legal Remedies Act, violations of the
Magnuson-Moss Warranty Act, 15 U.S.C. §2310(d)(1), Breach of the Implied Warranty
of Fitness for a Particular Purpose, Breach of the Implied Warranty of Merchantability,
Negligence, and Unjust Enrichment. Plaintiffs seek damages and equitable relief on
behalf of the class, which relief includes but is not limited to the following: providing
class members with an error-free and functional version of the iCloud component of the

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Mountain Lion operating system, or if no such product exists, to refund Plaintiffs and
class members the full amount paid for their Mountain Lion operating system software,
which relies on iCloud as a major component of its usage; a refund of the replacement
cost of the defective software; costs and expenses, including attorney’s fees; and any
additional relief that this Court determines to be necessary to provide complete relief to
Plaintiffs and the Class.

II.
JURISDICITON AND VENUE
5.

This Court has subject matter jurisdiction pursuant to 15 U.S.C.

§2310(d)(1)(B) and 28 U.S.C. §§1331, 1332, and 1367, because Plaintiffs’ claims arise
under federal statute. The Court has supplemental jurisdiction over Plaintiffs’ state law
claims pursuant to 28 U.S.C. §1367(a).
6.

With respect to the Magnusson-Moss Warranty Act claims, the amount in

controversy in each individual claim is at least twenty dollars ($20), the proposed class
consists of over 2,500 members, and the aggregate damages exceed $50,000.
7.

This Court has original jurisdiction over this action under the Class Action

Fairness Act of 2005, 28 U.S.C. §1332(d)(2) (“CAFA”), as to the named Plaintiffs and
every member of the Class, because the proposed Class contains more than 100 members,
the aggregate amount in controversy exceeds $5 million, and members of the Class reside
across the United States and are therefore diverse from Defendant.

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8.

This Court has personal jurisdiction over Apple because Apple has a

manufacturing plant in Texas, Apple is authorized to conduct business in Texas, and
Apple has intentionally availed itself of the laws and markets of Texas through the
promotion, marketing, distribution, and sale of its Mountain Lion software in Texas.
9.

Venue is proper in this District pursuant to 28 U.S.C. §1391(b), because a

substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this
District. Venue is also proper under 18 U.S.C. §1965(a), because Defendant transacts a
substantial amount of its business in this District. Plaintiffs are filing concurrently
herewith an affidavit stating facts showing that this action has been commenced in a
proper county pursuant to the Texas Rules of Civil Procedure.

III.
PARTIES
10.

Plaintiff Lillian Kim (“Ms. Kim”) resides in Harlingen, Texas. Ms. Kim

purchased the Apple Mountain Lion Operating System 10.8 in December, 2012.
Approximately one day after purchase, Kim noticed that the iCloud software was not
functioning as advertised and not backing up her data. Immediately after installation,
Kim noted that the iCloud software would not allow her to login with her multiple iTunes
accounts, thus denying her access to the songs that she paid money for and paid the
license to use. Ms. Kim could find no fix for these issues. Ms. Kim also attempted to
logon to her iCloud account and was unable to, on several occasions.
11.

Plaintiff Siria Luckey resides in San Antonio, Texas. Ms. Luckey

purchased the Apple Mountain Lion Operating System version 10.8 and installed it on

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her MacBook in December, 2012. Immediately after purchase, Luckey noted that the
iCloud software was not automatically backing-up her data. Ms. Luckey also was unable
to synchronize her multiple Apple IDs for her iTunes accounts, thus losing access to the
iTunes songs she purchased. Furthermore, Ms. Luckey lost some of the data stored on
her computer via use of the iCloud system. Ms. Luckey also noticed that her address
book did not back up automatically, as the iCloud advertisement claimed it would.
Lastly, Ms. Luckey was unable to access her iCloud account on various occasions. To
date, Plaintiff Luckey has found no fix for these issues.
12.

Plaintiff David DeBurro resides in North Andover, Massachusetts. Mr.

DeBurro purchased a MacBook Air in March 2013 with the Mountain Lion Operating
System installed. Approximately one day after purchase, Mr. DeBurro noticed problems
with the operation of Mountain Lion and iCloud. The iCloud component of the Mountain
Lion Operating System was not backing up the files on Mr. DeBurro’s laptop. In
addition, Mr. DeBurro attempted on several occasions to sync the contacts from his
address book and his iPhone to the iCloud system, to no avail. When Mr. DeBurro asked
the Geniusbar at his local Apple store for help he was told to “keep trying”, “we know
there’s bugs”, and “this doesn’t always work, sorry.” Mr. DeBurro could find no fix for
these issues. Mr. DeBurro also attempted to logon to his iCloud account and was unable
to, on several occasions.
13.

Defendant Apple, Inc. (“Apple”) is incorporated in California. Its

executive offices and company headquarters are located in Cupertino, Santa Clara
County, California. Apple has an assembly factory in the State of Texas, has consumer
sales outlets in the State of Texas, and conducts substantial business here. Apple is a

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publicly traded company, with net sales of over $85 billion in 2011, $37.4 billion of that
total in the United States alone. Apple sells its Computers (“Subject Computers”) with
the installed Mountain Lion Operating System to consumers throughout the United
States, including to at least tens of thousands of consumers in Texas, which constitutes a
significant percentage of Apple’s sales in the United States and in Texas. Apple also
sells its Operating System upgrade, the Mountain Lion Operating System version 10.8, to
consumers throughout the United States, including to at least tens of thousands of
consumers in Texas, which constitutes a significant percentage of Apple’s sales in the
United States and in Texas.
IV.
DEFENDANT’S UNLAWFUL CONDUCT
14.

Since the early 1970s, Apple has engaged in the business of designing,

manufacturing, marketing, distributing and selling personal computers, software, and
related products and services through its own retail (and more recently, online) stores,
direct sales, third party wholesalers and resellers.
15.

On or about July 25, 2012, Apple began warranting, advertising,

marketing, selling and providing the new Mountain Lion Operating System version 10.8
on its website, and installed on newly sold MacBook Air, MacBook Pros, iMacs, Mac
Pros, and Mac Mini series laptop and desktop computers. The Mountain Lion Operating
System version 10.8 was the first generation of this new series of software (collectively,
referred to as “Mountain Lion”). Apple sold Mountain Lion to Plaintiffs and the Class as
a operating system upgrade and original equipment included on its Subject Computers.

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16.

Apple markets the reliability and functionality of the Mountain Lion

Operating System.
17.

Regarding Mountain Lion, Apple makes the following representations:

“People are going to love the new features in Mountain Lion and how easy it is to
download and install from the Mac App Store.” Senior Executives at Apple also note,
“With iCloud integration, Mountain Lion is even easier to set up, and your important
information stays up to date across all your devices so you can keep editing documents,
taking notes, creating reminders, and continue conversations whether you started on a
Mac, iPhone or iPad,” from Philip Schiller - Apple’s senior vice president of Worldwide
Marketing. See Apple Press Release July 25, 2012 http://www.apple.com/pr/library/2012/
07/25Mountain-Lion-Available-Today-From-the-Mac-App-Store.html.
18.

Apple also boasts that Mountain Lion is the “World’s most advanced

desktop operating system.” Furthermore, Apple represents that, “With more than 200
innovative new features, Mountain Lion includes: iCloud integration, for easy set up of
your Mail, Contacts, Calendar, Messages, Reminders and Notes, and keeping everything,
including iWork documents, up to date across all your devices”. See Apple Press
Release July 25, 2012 http://www.apple.com/pr/library/2012/07/25Mountain-LionAvailable-Today-From-the-Mac-App-Store.html.
19.

Apple markets the iCloud portion of Mountain Lion by representing,

“iCloud is how a Mac, iPad, iPhone, and iPod touch work together.1 It keeps your mail,
calendars, contacts, reminders, documents, notes, and more up to date wherever you use
them. So when you add, delete, or change something on your Mac, it also happens
automatically on your iPad, iPhone, and iPod touch. And vice versa. You don’t have to

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do anything at all — iCloud is automatic. Just sign in once with your Apple ID and
iCloud is set up in all the apps that use it. Suddenly, life’s easier to juggle.” See
http://www.apple.com/osx/whats-new/.
20.

The footnote referenced in Apple’s advertising only states, “1 - iCloud

requires iOS 5 on iPhone 3GS or later, iPod touch (3rd and 4th generation), or iPad; a
Mac computer with OS X Lion or later; or a PC with Windows Vista or Windows 7
(Outlook 2007 or 2010 or an up-to-date browser is required for accessing email, contacts,
and calendars). Some features require a Wi-Fi connection. Some features are not
available in all countries. Access to some services is limited to 10 devices.” See
http://www.apple.com/osx/whats-new/.
21.

Under the Tab “Documents in the Cloud”, Apple represents, “iCloud

keeps the latest version of your documents on your Mac, iPad, iPhone, and iPod touch.
When you edit a document, the changes appear across all your devices.” See

http://www.apple.com/osx/whats-new/.
22.

As to iCloud, Apple also claims, “Reminders. Now nothing slips your

mind. Organize your life on your Mac. It’s all in a list. More than one, in fact. Make as
many lists as you need and easily add to them. Set due dates and you’ll get alerts as
deadlines approach. Set a location from your Mac, and your iPhone or iPad will remind
you when you get there.2 Check items off your lists as you go and keep track of what
you’ve completed. iCloud keeps your reminders up to date on your Mac, iPad, iPhone,
and iPod touch, so you don't forget anything.” See http://www.apple.com/osx/whatsnew/.

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23.

As to iCloud, Apple claims, “iCloud stores your content and wirelessly

pushes it to all your devices.” See http://www.apple.com/osx/whats-new/. Apple also
claims, “iCloud does more than store your content — it lets you access your music,
photos, calendars, contacts, documents, and more, from whatever device you’re on. And
it’s built into every new iOS device and every new Mac.” See

http://www.apple.com/icloud/.
24.

As to iCloud, Apple claims, “Documents in the Cloud. If you have the

same iCloud-enabled apps on more than one device, iCloud automatically keeps the
documents you create — and other important data used by your apps — up to date across
all your devices.”
Apple continues, “All your documents, with all your edits, on every device. With
iCloud, the documents you create stay up to date across all your devices — automatically.
You don’t have to remember to upload your work to a special folder, or browse a
cluttered file system to find it again. Your documents are right there in your app,
completely up to date and ready whenever you need them. Which means you can easily
access the latest versions on whatever device you happen to be using at the time.” See
http://www.apple.com/icloud/features/documents.html,
25.

For integration of iTunes songs into iCloud, Apple claims, “iTunes in the

Cloud. Your music, movies, and TV shows. Wherever you want them.” Apple
continues, “You never know when you’ll suddenly be in the mood to listen to a favorite
song, rewatch a classic movie, or laugh at that hilarious sitcom episode with a friend.
With iCloud, you can have iTunes automatically download new music purchases to all
your devices the moment you tap Buy. You can also access past music, movie, and TV

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show purchases from any of your devices — wirelessly and without syncing.1’’. See
http://www.apple.com/icloud/features/#itunes
The footnote merely mentions, “1 - Automatic downloads and downloading
previous purchases require iOS 4.3.3 or later on iPhone 3GS or later, iPod touch (3rd
generation or later), or iPad; iOS 5 or later on iPhone 4 (CDMA model); or a Mac or PC
with iTunes 10.3.1 or later. Previous purchases may be unavailable if they are no longer
in the iTunes Store, App Store, or iBookstore. Downloading previous movie purchases
requires iTunes 10.6 or later, iOS 5 or later, or Apple TV software 4.3 or later. Not all
previously purchased movies are available for downloading to your other devices.” See
http://www.apple.com/icloud/features/#itunes.
26. However, contrary to its advertisements, Apple’s Mountain Lion is not the
“World’s most advanced desktop operating system”. Apple’s iCloud does not “Store
your content wirelessly push it to all your devices” but rather is fragile, defective,
deceptive, unusable, and tends to fail when used as intended.
27.

The iCloud feature consistently fails and does not automatically back up

data generated by the user. The iCloud feature however, does erase data on user’s
computers. Once erased by iCloud, the data cannot be recovered. Furthermore, users are
not able to login to the iCloud’s remote servers or access data that the users have saved
previously.
Moreover, iCloud does not allow users to access iTunes music that the users paid
for. If the users purchased songs for their children or family members (as is common
since only adults with credit cards can purchase iTunes music) the users can no longer

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access all of the songs that the users purchased on iTunes. This occurs because the
iCloud will only allow the user to link one iTunes account to one iCloud account. Thus
music purchases using the same credit card (but under different iTunes accounts) are lost.

28.

With the limitations of the subject computers, it is imperative to have a

functioning operating system to operate the computer. Any operating system designed
for the subject computers must be functional and durable enough to withstand the uses for
which it is intended. Such normal use should not limit the advertised functionality of the
operating system, nor disable data, nor disable iTunes access, or nor stop users from
accessing remotely stored data. The normal use of the subject computers and Mountain
Lion causes this failure.
29.

As no other manufacturers produce operating systems for Apple

computers, Apple has a production monopoly on their computer’s operating system. As
consumers have no other alternative, but to purchase and use the defective Mountain Lion
operating system (and in some instances, the defective operating system is sold preinstalled in to the subject computers), consumers are placed at a great disadvantage in
bargaining power to Defendant’s unconscionable actions.
30.

As the operating system designer and manufacturer, (and the designer and

manufacturer of the subject computers), Apple possesses specialized knowledge
regarding the composition of its operating systems, and is in a superior position to know
and learn about defects in its operating system and iCloud component. In fact, as
evidenced by the many purchasers of the defective subject operating system, who have
gone through the trouble of logging on to Apple’s website to complain of the problems

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alleged herein, Apple has been aware of these defects for nearly one year, but has done
nothing about them.
31.

From July 2012 through November 2012, numerous “customer reviews”

of the Mountain Lion operating system have been posted to the Apple Online Store. The
vast majority of the reviews are extremely negative, notifying Apple again and again
about its defective operating system. More than 14,362 complaints have been posted
regarding the iCloud software component. For example, a recent posting about the
defective operating system, posted on October 19, 2012 titled iCloud Backup Failure,
written by user “aMused Too” states:
“I have an iPad3 that I purchased in the spring which is now running
IOS6, I updated on the day IOS6 came out.
*

On October 17th I received a notification that my iPad hadn't been updated in 2
weeks. This has never happened to me because I typically plug in my iPad at night and
let it recharge and update over night. I have it set to automatically backup when the iPad
is plugged in and turned off.
I checked to make sure I had ample storage. I had only used 2.6 GB of the 5.0
GB available. So I tried the automatic backup again the next night.
It didn't work, my information showed that my last backup had been October 3rd.
So I tried to manually back up and got the spinning timer with no estimate as to
time remaining. So I figured it was going to take some time. I left the iPad plugged into
the wall and walked away. I came back about 20-30 minutes later and the backup had
stopped during that time and failed again.
I tried various suggestions that I've read on the forums, including deleting all my
iCloud data and starting over with nothing but Calendar, Contacts and Reminder
running.
I still have the same issue . . . the backup wheel keeps spinning, no estimate, no
backup.”

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*
On October 21, 2012, still another customer named OldHoya wrote, “I
have the same problem with iCloud. I first noticed Pages won't sync. Tried changing
Pages settings.

Tried turning backup on and off.
Tried turning off various apps from backup then all apps.
Tried deleting the existing backup file.
Tried logging out of the icloud account, tried forced sync of Pages files (had to
delete the dupes)
In short I have tried everything I can find on these boards and from Apple. Until
then I have to stop using Pages for ipad and will use apps that sync to more reliable
services like Dropbox, Box.com, Google docs and Evernote. I have accounts with all of
these and they have never failed on iPad, phone or Pc. In contrast, iCloud is not ready for
prime time and I can't risk my docs to apps that depend solely on iCloud until Apple steps
up. Sorry I paid for Pages.”
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On November 6, 2012, another customer named Lotu wrote, “Did you
ever find a solution? I had the same thing happen with both my iPhone 4S and iPad 2.
I've called apple and they had me try all the things you've done but with no success. They
bumped it up to a senior iOS engineer whatever that is but he didn't have any solutions
either. He basically acknowledged the problem was with icloud and is supposed to be
conferring with icloud engineers to see what other ideas they have. But this is just
ridiculous. No apple product should be this difficult to implement. It reminds me of my
microsoft days.
I think iCloud just has a lot of issues. It's never worked without a struggle and
iCloud email was so unreliable I stopped using it altogether. I was wondering why apple
extended my old MobileMe account with 20 extra gb on iCloud for an extra year but now
I know why. It doesn't work anyway so they could keep extending it for years with no
real impact on them at all. I was a big supporter of apple but lately they are giving me no
real reasons to stay loyal and lots of reasons to leave.”
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On November 7, 2012, another customer named Marion BJ writes, “I have
the exact same oroblem, only difference is I have an iPad2, but I guess it works the same.
Personally I found that I've only been having issues with it since the iOS6 upgrade.. I
think that's the cause of all the problems.. Still if you can try to upgrade your itunes as
well, maybe if it isnt the same version as the iPad and is failing to connect. If you find the
solution please let me know!”

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*
On November 9, 2012, another customer named VIVIANABERNARD
writes, “I HAVE BOUGHT 25 GB OF STORAGE, GOT 21.4 FREE, AND
WHENEVER I WANT TO BACK UP MY MUSIC THE SYSTEM RESPONDS I
DON'T HAVE ENOUGH STORAGE....! HOW DO I CONCENTRATE MY STORAGE
UNDER ONE ID??? BY THE WAY, THIS IS HAPPENING IN MY IPHONE 4S!!!”
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On March 3, 2012, another customer named Vogon-Poet writes, “I'm
trying to get my iPad 2 to automatically back itself up to iCloud.
It seems as if the iPad's automatic backup is not being "triggered." Every couple
of weeks I get a message on the iPad telling me "I haven't been backed up in a while." I'd
like to get it so that the backups occur (each night?) without me having to think about
them.”
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On October 27, 2012, another customer named TechnoDiva writes, “I
updated the OS and now my ipad is stuck on icloud backup. I can't unlock it. Anyone
else have this problem?”
*
On November 11, 2012, another customer named tpmac22 writes, “I
decided to give icloud a go so I uploaded an important document (my personal statement
for university no less) and it has decided to delete it. Thank you Apple, thank you very
much.”
*
On November 11, 2012, another customer named xmench writes, “I've
been trying to sign into iCloud using my CORRECT Apple ID / password combination
but it keeps telling me my password is incorrect.
I know this is not true because I just used the same Apple ID / password combo to
sign into this Apple support community (which was required in order to post this
message). Also, I have had no problems using it to download apps on my iphone from the
App Store.
I've tried changing my password (as prompted to do by Apple Support, since there
is no password recovery) and while my iphone / App store sign in recognizes the new
combination, my macbook doesn't.
Please help.”
*
On November 11, 2012, another customer named Ncat notes, “Hi All,
Recenlty I've been having intermittent problems with iCloud Mail and Safari on my
iMac.
Mail - I keep getting "p05-imap.mail.me.com cannot be contacted on port 993"
and cannot recieve email until I restart the Mail program then it all works, seems to

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happen overnight that authentication fails. I don't have any problems on multiple iOS
devices, just OSX and recreating the account doesn't make any difference.”
Something strange going on with iCloud since the latest updates and introduction
of the @icloud.com email address. Anyone got any thoughts?”
*
On November 10, 2012, another customer named Pigglepop writes,
“When I start my computer I receive a message saying "Photos for the iCloud account
*****@me.com cannot be accessed. Review your account information in System
Preferences". I did this but it didn't resolve the problem. How do I fix this?”
*
On November 10, 2012 another customer named mniewski notes, “my
notes aren't showing up in all my devices that are shared on icloud.
also when i post an event in ical on my iphone it does not show up on my imac. but it
does show up on my phone when i post it on my mac.
i am totally befuddled by trying to get icloud to work on my devices.”
*
On November 10, 2012 another customer named prisca7 notes, “How do I
get the switch-over icloud to "send" my suuck messages?”
*
On November 9, 2012, another customer named swsimm writes, “All of
my folders are still in My Mac and did not move to the cloud how do I do this”
*
On June 10, 2012, another customer named Enver Masud writes, “I've
tried to upload a Keynote presentation to iCloud by dragging it from my Mac and
dropping it into Keynote on iCloud. It begins to upload but within 10 seconds I get an
error message:
There was a problem uploading a presentation
Try again later
I've tried half a dozen times.”
*
On November 9, 2012, another customer named Fgrigorio notes, “exactly
the same problem, and so far no solution, this after two weeks of senior advisors at Apple
messing with my icloud account...”

*
On November 9, 2012, another customer named CyberianTsuinami notes,
“The problem that I'm having is as follows: I can edit any pages documents from

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my iCloud on my iPhone or iPad without issues and it automatically syncs between the
two. However, when I go to edit the same document on my iMac, which was working
just fine a few weeks ago, none of my documents are up to date. In an effort to 'force'
them to update, I turned off my iCloud on my mac and turned it back on. Now, instead of
outdated documents, all of the documents show up in my iCloud greyed out with a
'loading' bar underneath them that doesn't load. It's as if my iCloud is for some reason not
loading to my iMac. Everything else works fine, syncing apps, bookmarks, etc, but none
of my documents will load. I'm running OS X 10.8.2 with Pages on my iMac, and iOS 6
with Pages on my iPhone and iPad.
I sincerly hope that this is an easy fix, and I appologize if this issue already has a
question. I either couldn't find it or didn't understand what people were asking.”
*
On November 9, 2012, another customer named Ms Kirkland notes, “iCal
is giving me the following error only on iMac, iCal is syncing with my iPhone and iPad,
but not on iMac. Help! I run a small business and the iMac is my main work station, all
of our people subscribe to this iCal. I hope there’s a way to fix this.
“The request for account “iCloud” failed. The server responded with “400” to
operation CallDAVUpdateShareesQueuableOperation.””
*
On November 9, 2012, another customer named jmfmike writes, “I seem
to be signed into icloud vie @me.com on imac, icloud, and iphone, I use another ID apple
store and still another if viewing icloud. Want to have all under one (ie Icloud.com), but
when I try to change on any system is states that the @icloud.com is taken, which I know
because somewhere in the chain I did create it. What can I do to consolidate everything?
Thanks,”

*
On October 12, 2011, another customer named Rob Weinberg notes,
“Bookmarks, Contacts and Calendars are all syncing with icloud. Works beautifully,
however when I change a Pages or Numbers document on my MacBook Pro, it doesn't
sync with my ipad. itunes 10.5, ios 5, Lion 7.2 in use. Am I doing something wrong?
Thanks, Rob”

*
On October 13, 2011, another customer named Josiah Peske writes, “I too
realized this was happening for me, and read the iCloud features page more closely.
Apparently, it doesn't actually do what we want it to (and what I thought it was presented
as doing). It only automatically syncs documents across iOS devices, but not Macs.
Lame.”
*
On July 29, 2012, another customer named nancesendai notes, “I too have
macs for work purposes and I find it frustrating that the only reason I got the upgrade to

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Mountain Lion was because I wanted to have continuous syncing between my iPad and
my iMac at home; and that's the one feature that doesn't work!
I know I have it set up right, because I created a new file on my iMac and saved it to
iCloud. Then, on my iPad I went Settings -> iCloud -> Storage and Backup ->
manage storage -> numbers and all my new files I saved to iCloud are there. So, the
files are on my iPad, but when I open my Numbers app, they are not there.
I read every blog I could find and no one had a solution to this problem.
The same thing happens in the opposite direction. If I create a file on my iPad there is no
way to save it to iCloud. I can send it to iWork (which goes offline in 2 days) or email it,
but there's no iCloud option.
I got excited when I noticed there were updates on all my apps on my iPad as well
as all iWork applications on my iMac. Lo and Behold, they now look great with the
Retina display, but ABSOLUTELY NO ICLOUD SYNCING even though those were the
only two facts SPECIFICALLY MENTIONED IN THE UPDATE!
I hope they fix this soon, because apple is 0 for 3 when it comes to their cloud
promises. Steve Jobs even mentioned how commited Apple is to Cloud Syncing in a
keynote presentation before he passed. I hope you don't let him down.”
*
On July 29, 2012, another customer named Makoclb writes, “Okay, I must
still be missing something. I downloaded the updates. I have iCloud turned on on my
MacBook, but whenever I try to upload a Pages document to iCloud, I get an error
message.”
*
On August 1, 2012, another customer named Slowrider74 notes, “I have
Mountain Lion on my MBP with the latest iWork updates and I am not able to see the
documents that I have in the cloud that I have on my iPad and yes sync is enabled. Also
documents that I create on my MBP just say waiting when I say I want them on iCloud..
Any suggestions?”
*
On September 28, 2012, another customer named Santarelli writes, “I
have your exact same problem but that solution didn't work.”
*
On October 17, 2012, another customer named KJayCee2 notes, “This is
exactly the problem I am now having - files I create on my iPad in
Pages/Numbers/Keynote do not upload to the cloud and files that I upload to the cloud
(on icloud.com) from my computer do not appear on my iPad. This is a fairly recent
problem (in the last couple of days) and I can't for the life of me figure out what changed.
I didn't update the apps in the last few days and I haven't changed any of the settings on
the device.I've tried uninstalling one of the apps to see if it fixed the problem and it
doesn't. It seems to be a problem with iCloud itself because I can transfer files to my
device using iTunes - which now eliminates the ability to transfer files to my device from

18

anywhere other than my own computer.”
*
On October 19, 2012, another customer named Xoineg writes, “I have the
same exact issue. I see the little arrow on my documents, then it says syncing and never
finishes the upload, or just sits there llike nothing is happening, even though i have a
50MB/10MB connection.
icloud syncing has only worked once since last year. I delete the account, delete
all iwork apps, i even set my phone as a new iphone. then slowly turned icloud then
turned it on for each app and then i saw the documents syncing BUT it only worked for a
day or so. I Did not do anything to cause it to stop..it just stopped. which is weird since i
saw them working and syncing between my ipad, iphone and macbook air.
At this point I have tried every possible conbination of "fixes" and still nothing
and has been a year since it came out. I called apple support, and they said they would
call me in a few days as they wait for their engineers to tkae a look at my account.
Anyone has EVER gotten anything that works? anything from apple upper level
techs?
Thanks”

32.

Apple’s own website provides admissions that Apple is not only aware of

these defects, but provides irresponsible advice for consumers regarding how to address
the problems complained of. On a page titled, “iCloud: Setup iCloud on all your devices.
The rest is automatic,” Apple provides the following advice:
“1.

2.

Turn on iCloud. Choose System Preferences from the Apple menu on
your Mac. Click iCloud, enter your Apple ID, and select the services
you’d like to enable.

3.

Make sure your Mac is running OS X v10.7.4 or later. If you don’t have
the latest version of OS X, you can purchase it from the Mac App Store.
To get the most out of iCloud on your Mac, install OS X Mountain Lion
(v10.8).

Enable Photo Stream in iPhoto or Aperture. Open iPhoto ’11 (version 9.2
or later) or Aperture (version 3.2 or later) and click the Photo Stream icon
in the left column. Then click Turn On Photo Stream. Shared Photo
Streams require iPhoto 9.4, Aperture 3.4, and OS X v 10.8.2 or later.

19

4.

Enable automatic downloads in iTunes. To enable automatic downloads
for your music, apps, and books, open iTunes and choose Preferences.
Then click Store and select Music, Apps, and Books.*

5.

Turn on iCloud for the rest of your devices. To get the most out of iCloud,
set it up everywhere.”
See http://www.apple.com/icloud/setup/mac.html.

33.

It is not just reliability at issue here, but the cost to consumers to use the

computers and software for the purposes for which they were intended. Moreover, it
appears there is a concerted effort at Apple to keep the defect covert and not inform
current or prospective customers about the problems with Mountain Lion and iCloud.
Nowhere on the Support nor Setup page, does Apple note that numerous reports have
been received of problems with Mountain Lion and iCloud.
34.

Of course, it is not just through Apple’s online store that consumers are

logging complaints about the Mountain Lion and iCloud. The internet is rife with similar
complaints. One consumer recently complained on September 19, 2012 at MacForums:
“Never used iCloud before.
Just upgraded from 10.6.8 to 10.8.1
Most things work, except for the critical info in my iCal, which is all missing!!
I absolutely NEED to retrieve this info ASAP.
When I launch Calendar, the dialogue box indicates "Moving calendars from
server account. Couldn't move your calendars to iCloud because an error occurred. Make
sure you're connected to the internet, and then try again."
Then there are two buttons: "Try Again Now" and "Try Again Later"
Nothing happens when I try again NOW, even though I am connected to the
internet.”
See http://www.mac-forums.com/forums/os-x-operating-system/284723-upgrademountain-lion-issues.html.

20

35.

Some threads regarding problems with iCloud on MacForums have more

than 100,000 page views. See http://www.mac-forums.com/forums/os-x-operatingsystem/253324-lion-ical-not-syncing-icloud-calendar.html.

36.

To date, Apple has not taken action to remedy the defects in Mountain

Lion or iCloud, or to offer any replacement product. Rather, to hide the defect, Apple has
refused to address network outages and iCloud service disruptions. After a 1-3 day
outage in September 2012, Apple mentioned on its website that, “About 1-2 percent of
users were affected and that the company would be fixing the problem ASAP.” See
http://reviews.cnet.com/8301-13727_7-57513006-263/apple-fixes-icloud-outage-butproblems-linger/.
Apple’s refusal to address the problem, and lack on information on the cause of
the outage, demonstrates Apple’s desire to hide the defect.
37.

Apple knew about the complaints regarding the defective Mountain Lion

operating system and the iCloud component. Apple misleads its customers into thinking
that these issues are resolved by continuing to market and sell Mountain Lion as, “The
World’s most advanced desktop operating system” and iCloud as, “It keeps your content
up to date. On every device you use.” See http://www.apple.com/osx/
38.

To ensure that the Mountain Lion operating system and the iCloud

component would be fit for the ordinary or particular purposes for which the computer
was intended, Apple should have adequately tested the operating system and components
prior to releasing them for commercial sale. Had Apple exercised reasonable care in
testing its Mountain Lion operating system and iCloud, it would have discovered that the

21

operating system and cloud storage component is improperly designed, does not work
across Apple computing platforms, causes users to lose data, and causes users to lose
access to previously purchased songs on iTunes.
39.

Instead, Apple sold defective operating systems and software components

to Plaintiffs and proposed class members that were not fit for their intended use.
40.

Apple also could and should have tested alternate designs of its operating

system to avoid these destructive side-effects. As noted, Apple has been aware of the
weakness and defects in its operating system for over 11 months.
41.

Furthermore, Apple continues to manufacture and sell its defective

Mountain Lion operating system with iCloud components through pre-installation on new
Apple computers, even after it was informed by its own customers of the specific design
defects alleged herein.
Apple also manufactures and sells its defective Mountain Lion Operating System
as an operating system upgrade available for sale on Apple’s website, even after it was
informed by its own customers of the specific design defects alleged herein.
42.

Apple profits enormously from the sales of its operating system, while

Plaintiffs and proposed class members incur damages, including the price they paid to
purchase the defective operating system and the loss of computer functionality associated
therein.
43.

Apple has a history of introducing defective products into the stream of

commerce, and not informing consumers of significant defects in design. Examples
include Iphones with improperly designed antennas; MacBook Pros with defective

22

monitors; MagSafe Power Adapters that caught fire; and defective Logicboards. These
defects have only been remedied through Class Action litigation.

V.
PLAINTIFFS’ ALLEGATIONS
44.

Plaintiffs are purchasers of new Apple computers, iMacs, MacBook Air,

MacBook Pro, MacPros, Macminis, and Iphones. Plaintiffs are also purchasers of the
Mountain Lion operating system upgrade version 10.8.
45.

Plaintiffs purchased the subject computers or operating system upgrade,

believing them to be suited for the purpose for which they were intended: allowing the
operating system and iCloud components to work in tandem.
46.

Since purchasing these computers or defective operating system upgrades,

Plaintiffs have had reduced functionality, data loss, inability to access iCloud storage, and
loss of iTunes songs, because, when used as instructed and intended, the Mountain Lion
operating system did not function and the iCloud component prematurely failed.
47.

Plaintiffs learned that far from being the only one experiencing such

problems with the Mountain Lion and iCloud, there were thousands of other similar
customer complaints on Apple’s website.
48.

In fact, Plaintiffs’ experiences with the Mountain Lion operating system

and iCloud are typical of at least thousands of other Apple purchasers who have
registered their complaints with Apple, and have documented their problems with
Mountain Lion and iCloud on various website forums dedicated to Apple products,

23

including Apple’s own website. The similarity of the user complaints about the
Mountain Lion and iCloud further evidences the uniformity of the product defects alleged
herein.
49.

Plaintiffs have suffered injury in fact and loss of money or property, and

they have been damaged in the amount they paid for the defective Mountain Lion
operating system upgrade and the amount they paid for Apple computers with the
defective Mountain Lion operating system pre-installed. Moreover, if no adequate and
functional replacement operating system exists, Plaintiffs have suffered damages in the
amount of the full price they paid for their Apple computers.

VI.
CLASS ALLEGATIONS
50.

Plaintiffs bring this class action on behalf of themselves individually and

all others similarly situated, pursuant to Rule 23 of the Federal Rules of Civil Procedure.
51.

The proposed class consists of all consumers who purchased an Apple

computer with the defective Mountain Lion operating system pre-installed or who
purchased an upgrade version of the defective Mountain Lion operating system from the
time of its introduction in the marketplace through and including the date of the class
notice (the “Class”).
52.

This action is properly brought as a class action for the following reasons:
(a)

proposed class is so numerous and geographically dispersed

throughout the United States that the joinder of all class members is impracticable. When

24

Plaintiffs do not know the exact number and identity of all class members, Plaintiff
believes there are tens if not hundreds of thousands of class members;
(b)

the disposition of Plaintiffs’ and proposed class members’ claims

in a class action will provide substantial benefits to both parties and the Court;
(c)

the proposed class is ascertainable and there is a well-defined

community of interest in the questions of law or fact alleged herein since the rights of
each proposed class member were infringed or violated in the same fashion;
(d)

there are questions of law and fact common to the proposed class

which predominate over any questions that may affect particular class members. Such
common questions include:
(i)

Whether Defendant exercised reasonable care in testing its

Mountain Lion operating system prior to its release for commercial sale;
(ii)

Whether Defendant’s Mountain Lion operating system is

defective when used as directed, intended or in a reasonably foreseeable manner;
(iii)

Whether feasible alternative formulations of the Mountain

Lion operating system were available;
(iv)

Whether Defendant’s Mountain Lion operating system was

fit for its intended purpose;
(v)

Whether Apple breached the implied warranty of fitness for

a particular purpose;

25

(vi)

Whether Apple has breached the implied warranty of

(vii)

Whether Apple has violated the Magnuson-Moss Warranty

(ix)

Whether Apple is strictly liable to Plaintiffs and the class

merchantability;

Act;

and whether Apple failed to warn Plaintiffs and the class;
(x)

Whether Apple committed Fraud under Texas Common

(xi)

Whether Apple has violated the Texas Deceptive Trade

(xii)

Whether Apple has violated the California Unfair

Law;

Practices Act;

Competition Law, Cal. Bus. & Prof. Code §§ 17200, et seq.;
(xiii)

Whether Apple has violated the California Consumers

Legal Remedies Act, Ca. Civil Code §§ 1750 et seq.;
(xiv)

Whether Apple has received funds from Plaintiffs and class

member that it unjustly received;
(xv)

Whether Plaintiffs and proposed class members have been

harmed and the proper measure of relief; and
(xvi)

Whether Plaintiffs and proposed class members are entitled

to an award of punitive damages, attorney’s fees and expenses against Defendant.

26

(e)

Plaintiffs’ claims are typical of the claims of the members of the

proposed class.
(f)

Plaintiffs will fairly and adequately protect the interests of the

proposed class in that they have no interests antagonistic to those of the other proposed
class members, and Plaintiffs have retained attorneys qualified in consumer class actions,
business litigation, and complex litigation as counsel.
(g)

A class action is superior to other available methods for the fair

and efficient adjudication of this controversy for at least the following reasons:
(i)

Given the size of individual proposed class member’s

claims and the expense of litigating those claims, few, if any, proposed class members
could afford to or would seek legal redress individually for the wrongs Defendant
committed against them and absent proposed class members have no substantial interest
in individually controlling the prosecution of individual actions;
(ii)

This action will promote an orderly and expeditious

administration and adjudication of the proposed class claims, economies of time, effort,
and resources will be fostered and uniformity of decisions will be insured; and
(iii)

Without a class action, proposed class members will

continue to suffer damages, and Defendant’s violations of law will proceed without
remedy while Defendant continues to reap and retain the substantial proceeds of its
wrongful conduct.

27

(iv)

Plaintiffs know of no difficulty that will be encountered in

the management of this litigation, which would preclude its maintenance as a class
action.
53.

Plaintiffs seek damages and equitable relief on behalf of the proposed

class on grounds generally applicable to the entire proposed class.

VII.
FIRST CAUSE OF ACTION
(Fraud under Texas Common Law)
54.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.
55.

To establish common law fraud in Texas, a plaintiff must prove that a) the

defendant made a material misrepresentation, b) which was false, c) which was either
known to be false when made or which was recklessly made as a positive assertion
without knowledge of its truth, d) which the speaker made with the intent that it be acted
upon, e) the other party took action in its reliance upon the representation, and f) thereby
suffered injury. In re FirstMerit Bank, N.A., 52 S.W. 3d 749, 758 (Tex. 2001); Formosa
Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex.
1998).
56.

Apple committed common law fraud in Texas by representing that: the

subject computers and Mountain Lion Operating System were functional and suitable for
sale; selling subject computers and operating system with the defective Mountain Lion

28

Operating System; knowing the Mountain Lion operating system was defective;
advertising that the Mountain Lion Operating System was suitable for use; that Plaintiffs
relied upon Apple’s statements of suitability; and that Plaintiffs suffered injury. In re
FirstMerit Bank, N.A., 52 S.W. 3d 749, 758 (Tex. 2001); Formosa Plastics Corp. USA v.
Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998).
57.

Plaintiffs reserve the right to allege other violations of law that constitute

other unlawful business acts and practices. Such conduct is ongoing and continues to this
date.
58.

Apple’s conduct caused and continues to cause substantial injury to

consumers and their property, including Plaintiffs and proposed class members. The
gravity of Defendant’s alleged wrongful conduct outweighs any purported benefits
attributable to such conduct. There were also reasonable available alternatives to Apple
to further its business interests, other than voluntarily placing its defective Mountain Lion
operating system into the stream of commerce.
59.

Plaintiffs and Class members have suffered injury in fact and have lost

money and/or property as a result of Defendant’s unfair and unlawful business practices
and are therefore entitled to the relief available under Texas Law.

VIII.
SECOND CAUSE OF ACTION
(Violations of the Texas Deceptive Trade Practices Act)

29

60.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.
61.

This cause of action arises under the Texas Deceptive Trade Practices Act,

Texas Business and Commerce Code Section 17.46 (b)(5), (7), (9), and (24). Plaintiffs
are consumers as defined by Texas Business and Commerce Code Section 17.45 (4).
Apple’s Mountain Lion operating system constituted “goods” as defined by Tex Bus
Comm Code 17.45 (1). At all times relevant hereto, Apple constituted a “person” as that
term is defined in Tex Bus Comm Code 17.45(3).
62.

Apple violated and continues to violate the DTPA by engaging in the

following deceptive practices specifically proscribed by the Tex Bus Comm Code
Section 17.46 (b), in transactions with Plaintiffs and class members that were intended to
result or which resulted in the sale or lease of goods or services to consumers:
(a)

In violation of Tex Bus Comm Code Section 17.46 (b)(5),

Defendant has represented that the Mountain Lion operating system has sponsorship,
approval, characteristics, ingredients, uses, benefits, or quantities which it does not have;
(b)

In violation of Tex Bus Comm Code Section 17.46 (b)(7),

Defendant has represented that the Mountain Lion operating system is of a particular
standard, quality, or grade, or that goods are of a particular style or model, if they are of
another;
(c)

In violation of Tex Bus Comm Code Section 17.46 (b)(9),

Defendant advertised the Mountain Lion operating system in question with the intent not
to sell it as advertised;
(d)

In violation of Tex Bus Comm Code Section 17.46 (b)(24),
30

Defendant has failed to disclose information concerning the Mountain Lion operating
system, which was known at the time of the transaction, if such failure to disclose such
information was intended to induce the consumer into a transaction into which the
consumer would not have entered had the information been disclosed.
63.

Apple has made uniform representations that its Mountain Lion operating

system is a high-quality product that will perform as represented, including but not
limited to the fact that consumers’ data would be saved via iCloud. These representations,
as set forth above, were false, deceptive, and/or misleading and in violation of the Texas
Deceptive Trade Practices Act.
64.

Pursuant to the Texas Business and Commerce Code, Section 17.505(a),

Plaintiffs have notified Apple in writing by certified mail of the particular violations of
the Texas Deceptive Trade Practices Act alleged herein, and have demanded that Apple
rectify the problems associated with the actions detailed above and give notice to all
affected consumers of its intent to act. Plaintiffs sent this notice by certified mail, return
receipt requested, to Apple’s principal place of business.
65.

If Apple fails to rectify or agree to rectify the problems associated with the

actions detailed above and give notice to all affected consumers within 60 days of the
date of written notice, pursuant to the Texas Deceptive Trade Practices Act, Plaintiffs
will amend their Complaint to seek actual, punitive, and statutory damages and all other
relief available to Plaintiffs and the Class under the DTPA.

31

66.

In addition, pursuant to the Texas DTPA, Plaintiffs are entitled to, and

therefore seek, a Court order enjoining the above-described wrongful acts and practices
that violate the Texas DTPA.
67.

Plaintiffs and the class are also entitled to recover attorney’s fees, costs,

expenses, and disbursements pursuant to the Texas DTPA.
IX.
THIRD CAUSE OF ACTION
Violation of California’s Unfair Competition Law
Cal. Bus. & Prof. Code §§ 17200, et seq.
(On Behalf of Plaintiffs and Class Members in California)
68.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.
69.

California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§

17200, et seq., protects both consumers and competitors by promoting fair competition in
commercial markets for goods and services.
70.

The UCL prohibits any unlawful, unfair or fraudulent business act or

practice. A business practice need only meet one of three criteria to be considered unfair
competition. An unlawful business practice is anything that can properly be called a
business practice and that at the same time is forbidden by law.
71.

Apple has violated the fraudulent prong of the UCL in that it failed to

inform Plaintiffs and the Class that the Mountain Lion Operating System would not
perform as advertised and that the iCloud component was incomplete and/or defective.
72.

Apple has violated the unfair prong of the UCL in that it continues to
32

profit from selling Plaintiffs’ and the Class members the defective Mountain Lion
Operating System.
73. Pursuant to Cal. Bus. & Prof. Code § 17203, Plaintiffs, on their own behalf
and on behalf of the Class, seek an order enjoining Apple from continuing to engage in
the unfair and unlawful conduct described herein, an award of attorneys’ fees and costs
pursuant to Cal. Code Civ. Proc. § 1021.5, as well as such other and further relief as the
Court deems just and proper.
X.
FOURTH CAUSE OF ACTION
Violation of California’s Consumers Legal Remedies Act
Cal. Civil Code §§ 1750, et seq.
(On Behalf of Plaintiffs and Class Members in California)
74. Plaintiffs re-allege and incorporate by reference the allegations contained in
the paragraphs above as if fully set forth herein.
75.

This cause of action arises under the California Consumers Legal Remedy

Act, California Civil Code §1770 (a)(5), (7), (9), and (14). Plaintiffs are consumers as
defined by California Civil Code §1761(d). Apple’s Mountain Lion Operating System
constituted “goods” as defined by California Civil Code §1761(a). At all times relevant
hereto, Apple constituted a “person” as that term is defined in California Civil Code
§1761(c).
76.

Apple violated and continues to violate the CCLRA by engaging in the

following deceptive practices specifically proscribed by the California Civil Code Section

33

1770(a), in transactions with Plaintiffs and class members that were intended to result or
which resulted in the sale or lease of goods or services to consumers:
(a)

In violation of Cal. Civ. Code §1770(a)(5), Defendant

represented that the Mountain Lion Operating System has sponsorship, approval,
characteristics, uses, or benefits which it does not have;
(b)

In violation of Cal. Civ. Code §1770(a)(7), Defendant

represented that the Mountain Lion Operating System is of a particular standard, quality,
or grade, or that goods are of a particular style or model, if they are of another; and
(c)

In violation of Cal. Civ. Code §1770(a)(9), Defendant

advertised the Mountain Lion Operating System with the intent not to sell it as
advertised.
77.

Apple has made uniform representations that its Mountain Lion Operating

System is a high-quality product that will perform as represented. These representations,
as set forth above, were false, deceptive, and/or misleading and in violation of the
California Consumers Legal Remedy Act.
78.

Apple made uniform misrepresentations that its Mountain Lion Operating

System is the “World’s most advanced desktop operating system.” This representation,
as set forth above, was false, deceptive, and/or misleading and in violation of the
California Consumers Legal Remedies Act.
79.

Apple also made uniform misrepresentations that, “With more than 200

innovative new features, Mountain Lion includes: iCloud integration, for easy set up of
your Mail, Contacts, Calendar, Messages, Reminders and Notes, and keeping

34

everything, including iWork documents, up to date across all your devices.” This
representation, as set forth above, was false, deceptive, and/or misleading and in violation
of the California Consumers Legal Remedies Act.
80.

Apple also assured customers that, “With iCloud integration, Mountain

Lion is even easier to set up, and your important information stays up to date across all
your devices so you can keep editing documents, taking notes, creating reminders, and
continue conversations whether you started on a Mac, iPhone or iPad.” This
representation, as set forth above, was false, deceptive, and/or misleading and in violation
of the California Consumers Legal Remedies Act.
81.

Apple also told customers the following, “All your documents, with all

your edits, on every device. With iCloud, the documents you create stay up to date
across all your devices — automatically. You don’t have to remember to upload your
work to a special folder, or browse a cluttered file system to find it again. Your
documents are right there in your app, completely up to date and ready whenever you
need them. Which means you can easily access the latest versions on whatever device
you happen to be using at the time.” This representation, as set forth above, was false,
deceptive, and/or misleading and in violation of the California Consumers Legal
Remedies Act.
82.

Violations of this statute subject the company to all available civil

remedies and a civil penalty of $1,000.00 for each violation.
83.

Pursuant to Cal. Civ. Code §1780, Plaintiffs, on their own behalf and on

behalf of the Class, seek an order enjoining Apple from continuing to engage in the

35

unlawful conduct described herein, an award of attorneys’ fees and costs pursuant to Cal.
Code Civ. Proc. §1021.5, as well as such other and further relief as the Court deems just
and proper.
84.

Pursuant to the California Civil Code, §1782, Plaintiffs have notified

Apple in writing by certified mail of the particular violations of the California Consumers
Legal Remedy Act alleged herein, and have demanded that Apple rectify the problems
associated with the actions detailed above and give notice to all affected consumers of its
intent to act. Plaintiffs sent this notice by certified mail, return receipt requested, to
Apple’s principal place of business.
85.

If Apple fails to rectify or agree to rectify the problems associated with the

actions detailed above and give notice to all affected consumers within 30 days of the
date of written notice, pursuant to the California Consumers Legal Remedy Act, Plaintiffs
will amend their Complaint to seek actual, punitive, and statutory damages and all other
relief available to Plaintiffs and the Class under the CCLRA.
86.

In addition, pursuant to the California Consumers Legal Remedy Act,

Plaintiffs are entitled to, and therefore seek, a Court order enjoining the above-described
wrongful acts and practices that violate the CCLRA.
87.

Plaintiffs and the class are also entitled to recover attorney’s fees, costs,

expenses, and disbursements pursuant to the CCLRA.
XI.
FIFTH CAUSE OF ACTION
(Violations of the Magnuson-Moss Warranty Act, 15 U.S.C. Sec 2310(d)(1))

36

88.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.
89.

By placing its Mountain Lion operating system in the stream of

commerce, Apple impliedly warranted that it was reasonably suited for its intended use,
i.e.,
90.

Apple’s Mountain Lion operating system is not merchantable. In breach

of the implied warranty of merchantability and fitness for a particular purpose, Apple’s
Mountain Lion operating system fails to work properly, thus rendering data and
components of the software unusable.
91.

Apple’s Mountain Lion operating system was not reasonably designed for

its intended use when it left Defendant’s control and entered the market.
92.

The Mountain Lion operating system defects were not open and/or

obvious to consumers. Any purported limitation of the duration and scope of these
warranties given by Apple is unreasonable, unconscionable, and void, because Apple
knew or recklessly disregarded the fact that the defect in the Mountain Lion operating
system existed and might not be discovered, if at all, until the Mountain Lion operating
system had been used for a period of time longer than the period of any written warranty,
and Apple willfully withheld information about the defect from purchasers of Apple
computers. Moreover, due to the unequal bargaining power between the parties,
Plaintiffs and the class members had no meaningful alternative to accepting Apple’s
attempted pro forma limitation of the duration of any warranties.

37

93.

The defective design and manufacture of the Mountain Lion operating

system was, and is, an inherent defect which either was known or which should have
been known to Apple to be a defect at the time Plaintiffs and class members purchased
their Apple computers.
94.

The presence of this defect, the problems associated with iCloud, and

Apple’s failure to warn of its presence or cure the defect, constitutes a breach of both the
express and implied warranties.
95.

Apple’s knowledge of this inherent defect, through both Plaintiff’s 60-day

demand letter, and through complaints lodged on its own website about the Mountain
Lion operating systems, has given Apple more than a reasonable opportunity to cure the
defect – an opportunity that Apple has failed and refused to take.
96.

As a result, Plaintiffs and proposed class members have been damaged in,

inter alia, the amount they paid to purchase Apple’s un-merchantable Mountain Lion
operating systems, and if no replacement exists, in the amount they paid for their related
Apple Computer, which relies on the Mountain Lion operating system for its usage.
97.

Pursuant to 15 U.S.C. Sec 2310(D)(2), Plaintiffs are also entitled to

attorney’s fees and reimbursement of expenses.

XII.
SIXTH CAUSE OF ACTION
(Breach of Implied Warranty of Fitness for a Particular Purpose)

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98.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.
99.

By placing its Mountain Lion operating system in the stream of

commerce, Apple impliedly warranted that its Mountain Lion operating system was
reasonably fit for its particular purpose, i.e., to function as the primary operating system
and save data without premature failure.
100.

Apple’s Mountain Lion operating system is not fit for its particular

purpose. In breach of the implied warranty of fitness for a particular purpose, Apple’s
Mountain Lion operating system fails by not saving data across devices to a cloud storage
location, by not automatically updating data from user’s computers to the cloud storage
location, by not allowing access to the cloud storage location, and by not allowing access
to previously-purchased iTunes songs.
This failure limits the functionality of the subject computers. A common point of
failure is the iCloud component. Another common failure is the inability to access
previously-purchased iTunes songs.
101.

Apple’s Mountain Lion operating system was not reasonably suited for its

intended particular use when it left Defendant’s control and entered the market.
102.

The Mountain Lion operating system defects were not open and/or

obvious to consumers.
103.

Any purported limitation of the duration and scope of the implied

warranty of fitness for a particular purpose given by Apple is unreasonable,
unconscionable, and void, because Apple knew or recklessly disregarded that the defect

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in the Mountain Lion operating system existed and might not be discovered, if at all, until
the Mountain Lion operating systems had been used for a period of time longer than the
period of any written warranty, and Apple willfully withheld information about the defect
from purchasers of Apple computers. Moreover, due to the unequal bargaining power
between the parties, Plaintiffs and class members had no meaningful alternative to
accepting Apple’s attempted pro forma limitation of the duration of any warranties.
104.

Furthermore, Apple did have knowledge of the defect, and rather than

attempt to repair the defect, Apple hid the defect in future sales of Apple computers and
sales of software upgrade by not acknowledging the numerous problems with Mountain
Lion. This constructive knowledge and attempt to hide the defect, demonstrates Apple
disregarded its duty to notify consumers of the defect.
105.

As a result, Plaintiffs and proposed class members have been damaged in,

inter alia, the amount they paid to purchase Apple’s unfit Mountain Lion operating
systems, and if no suitable replacement exists, in the amount they paid for their related
Apple Computer, which relies on the Mountain Lion operating system for its function and
usage.

XIII.
SEVENTH CAUSE OF ACTION
(Breach of Implied Warranty of Merchantability)
106.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.

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107.

By placing its Mountain Lion operating systems in the stream of

commerce, Apple impliedly warranted that its Mountain Lion operating system was
reasonably functional for its intended use.
108.

Apple’s Mountain Lion operating system is not merchantable. In breach

of the implied warranty of merchantability, Apple’s Mountain Lion operating system fails
by not saving data across devices to a cloud storage location, by not automatically
updating data from user’s computers to the cloud storage location, by not allowing access
to the cloud storage location, and by not allowing access to previously-purchased iTunes
songs.
109.

Apple’s Mountain Lion operating system was not reasonably designed

and/or manufactured for its intended use when it left Defendant’s control and entered the
market.
110.

The Mountain Lion operating system defects were not open and/or

obvious to consumers.
111.

Any purported limitation of the duration and scope of the implied

warranty of merchantability given by Apple is unreasonable, unconscionable and void,
because Apple knew or recklessly disregarded that the defect in the Mountain Lion
operating system existed and might not be discovered, if at all, until the Mountain Lion
operating systems had been used for a period of time longer than any written warranty,
and Apple willfully withheld information about the defect from purchasers of Apple
computers. Moreover, due to the unequal bargaining power between the parties,

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plaintiffs and the class members had no meaningful alternative to accepting Apple’s
attempted pro forma limitation of the duration of any warranties.
112.

As a result, Plaintiffs and proposed class members have been damaged in,

inter alia, the amount they paid to purchase Apple’s unmerchantable Mountain Lion
operating systems, and if no suitable replacement exists, in the amount they paid for their
related Apple Computer, which relies on the Mountain Lion operating system for its
usage.

XIV.
EIGHTH CAUSE OF ACTION
(Negligence)
113.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.
114.

The conduct of Apple in manufacturing, distributing, and selling the

Mountain Lion operating systems constituted negligence in failing to reasonably act in
accordance with all applicable standards of care. Apple owed Plaintiffs and class
members a duty not to disseminate a materially defective product.
115.

Apple also breached its duty of care by negligently failing to timely and/or

adequately warn Plaintiff and the class of the defective condition of the Mountain Lion
operating systems, even after Apple was, or should have been, fully aware of the material
defects in said Mountain Lion operating systems.

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116.

As a direct and proximate result of Apple’s negligence, Plaintiffs and

members of the class suffered economic injury, entitling them to just compensation, as
detailed below.

XV.
NINTH CAUSE OF ACTION
(Money Had and Received)
117.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.
118.

As more fully set forth above, Apple had in its possession money which in

equity and good conscience belongs to Plaintiff and Class members, which should be
refunded to Plaintiffs and Class members.

XVI.
TENTH CAUSE OF ACTION
(Unjust Enrichment)
119.

Plaintiffs re-allege and incorporate by reference the allegations contained

in the paragraphs above as if fully set forth herein.
120.

Apple improperly received and continues to improperly receive from

Plaintiffs and Class members millions of dollars as result of the conduct alleged above.
121.

As a result, Plaintiffs and the class have conferred a benefit on Apple to

which Apple is not entitled. Apple has knowledge of this benefit, wrongfully and

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deceptively obtained this benefit, and has voluntarily accepted and retained the benefit
conferred to it. Apple will be unjustly enriched if it is allowed to retain such funds and
therefore, a constructive trust should be imposed on all monies wrongfully obtained by
Apple and the money should be disgorged from Defendant, and returned to Plaintiffs and
the class.

PRAYER FOR RELIEF
WHEREFORE, Plaintiffs pray this Court enter a judgment against Defendant that:
A.

This action be certified and maintained as a class action under Rule 23 of the

Federal Rules of Civil Procedure and certify the proposed class as defined;
B.

Awards compensatory and/or punitive damages as to all Causes of Action

where such relief is permitted;
C.

Awards Plaintiffs and proposed class members the costs of this action,

including reasonable attorney’s fees and expenses;
D.

Orders Apple to immediately cease its wrongful conduct as set forth above;

enjoins Apple from continuing to falsely market and advertise, conceal material
information, and conduct business via the unlawful and unfair business acts and
practices complained of herein, orders Apple to engage in a corrective notice
campaign, and required Apple to refund to Plaintiffs and all of the class members the

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funds paid to Apple for these defective products, including, if no reasonably suited
replacement product exists, the full price paid for the subject computers;
E.

Awards equitable monetary relief, including restitution and disgorgement of

all ill-gotten gains, and the imposition of a constructive trust upon, or otherwise
restricting the proceeds of Defendant’s ill-gotten gains, to ensure that Plaintiffs and
proposed class members have an effective remedy;
F.

Awards pre-judgment and post-judgment interest at the legal rate; and

G.

Such further legal and equitable relief as this Court may deem just and proper.

JURY DEMAND
Plaintiffs demand a trial by jury on all issues so triable.

DATED: June 10, 2013

Respectfully submitted,
By:

/s/ Omar W. Rosales
Omar W. Rosales
THE ROSALES LAW FIRM, LLC
WWW.OWROSALES.COM
OMAR W. ROSALES
Federal No. 69067
402 SOUTH F ST
HARLINGEN, TX 78550
[phone] Toll-Free
[phone] Tel
[phone] Fax

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CERTIFICATION OF INTERESTED ENTITIES OR PERSONS
Pursuant to Civil L.R. 3-16, the undersigned certifies that as of this date, other
than the named parties, there is no such interest to report.

/s/ Omar W. Rosales
OMAR W. ROSALES,
ATTORNEY OF
RECORD FOR PLAINTIFFS
LILLIAN KIM
SIRIA LUCKEY
DAVID DEBURRO

CERTIFICATE OF SERVICE

I, Omar W. Rosales, do hereby, certify that on June 10, 2013 a true and correct
copy of the above and foregoing First Amended Complaint was sent via US MAIL to
Apple Inc., at Apple Inc., Legal Affairs Division, 1 Infinite Loop, Cupertino, CA 95014.

/s/ Omar W. Rosales
OMAR W. ROSALES

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