This case was last updated from Santa Clara County Superior Courts on 08/14/2019 at 07:52:47 (UTC).

Chinitz v. Apple Inc.

Case Summary

On 06/18/2018 Chinitz filed a Contract - Business lawsuit against Apple Inc. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Strickland, Elizabeth and Walsh, Brian C. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******0235

  • Filing Date:

    06/18/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Business

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judges

Strickland, Elizabeth

Walsh, Brian C

 

Party Details

Plaintiff

Chinitz, Ronald

Defendant

Apple Inc.

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Reese, Michael Robert

Granade, George V.

Weiner, Melissa S

Bourne, Joseph C

Warshaw, Daniel L

Defendant Attorneys

Amezcua, Alexandria Armida

Preovolos, Penelope A.

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Notice of Appearance of DLW.pdf: Comment: NOTICE OF APPEARANCE OF DANIEL L. WARSHAW

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/BCW

Notice

Notice CMC reset from 10-2-18 to 10-26-18: Comment: CMC reset from 10/2/18 to 10/26/18

Order

Order and Notice of Reassignment of Case to Department 1 BCW: Comment: Order & Notice of Reassignment of Case to Department 1; Hon. Brian C. Walsh presiding - signed/BCW

Proof of Service

8-15-2018 Proof of Service.pdf: Comment: Proof of Service

Notice: Appearance

Notice Appearance:

Summons: Issued/Filed

Summons Issued Filed: Comment: Proposed Summons

Civil Case Cover Sheet

Civil Case Cover Sheet: Comment: Civil Case Cover Sheet

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies): Comment: Class Action Complaint and Demand for Jury Trial

Notice

Notice CMC 2-22-19 at 10am in D1: Comment: CMC set for 2/22/19 at 10am in D1

Statement: Case Management Conference

Joint CMC Statement: Comment: Joint Case Management Statement

Complaint: Amended

Complaint First Amended: Comment: FIRST AMENDED COMPLAINT

Stipulation and Order

Stipulation and Order to Continue Defendant Apple Inc.'s Time to File a Responsive Pleading: Comment: Stipulation & Order to Continue Defendant Apple Inc.'s Time to File a Responsive Pleading - signed/BCW

Notice: Appearance

Notice of Appearance Atty Joseph C. Bourne:

Order

Order Granting Pro Hac Vice Application of Melissa S. Weiner: Comment: Order Granting Pro Hac Vice Application of Melissa S. Weiner - signed/BCW

Application: Pro Hac Vice

Application Pro Hac Vice: Comment: Notice of Application Pro Hac Vice * Melissa S. Weiner

Proof of Service

Proof of Service.pdf: Comment: Proof of Service

Declaration

Declaration of Daniel L. Warhaw.pdf: Comment: Declaration of Daniel L. Warshaw

37 More Documents Available

 

Docket Entries

  • 11/15/2019
  • Conference: Case Management - Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Comment: (4th CMC) Proposed Class Action * Discovery and responsive pleading deadline stayed, as of 8/16/18, when the case was deemed complex. Atty Melissa S. Weiner admitted Pro Hac Vice on 9/4/18, on behalf of Plaintiff Ronald Chinitz. First Amended Complaint filed 9/17/18 (timely). Related Case: In Re Apple Inc. Device Performance Litigation, Case No. 5:18-md-02827-EJD (ND Cal.) (Judge Edward J. Davila); a multi-district litigation concerning the download of iOS updates (including 10.2.1 and 11.2) on older model iPhone and iPad devices, which the plaintiffs allege intentionally slowed down the processing speeds of certain iPhone models, including iPhone SE, 6, 6 Plus, 6s, 6s Plus, 7, and 7 Plus. At the 10/26/18, the Court lifted the discovery stay (not bifurcated); parties were ordered to meet and confer re discovery plan. Second Amended Complaint filed 5/14/19; Answer thereto filed 6/17/19. MATTER IS AT-ISSUE.

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  • 08/08/2019
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  • Notice - Notice CMC 11-15-19 at 10am in D1: Comment: CMC set for 11/15/19 at 10am in D1

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  • 08/02/2019
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  • Conference: Case Management - Joint CMC Statement: CV-5100 HRG 8-2-19: Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Result: Held; Comment: (3rd CMC)

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  • 08/02/2019
  • Minute Order

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  • 08/02/2019
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  • Stipulation and Appointment of Official Reporter Pro Tempore - CV-5100 HRG 8-2-19: Comment: HRG 8/2/19 - signed/BCW

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  • 07/26/2019
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  • Proof of Service - POS: Comment: Proof of Service

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  • 07/26/2019
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  • Proof of Service - POS: Comment: Proof of Service

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  • 07/26/2019
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  • Statement: Case Management Conference - Joint CMC Statement: Comment: Joint Case Management Conference Statement

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  • 06/17/2019
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  • Answer/Response (No Fee) - Apple Inc Answer to Second Amended Complaint: Comment: Answer/Response/Denial

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  • 05/14/2019
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  • Proof of Service - Proof of Service: Comment: Proof of Service

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39 More Docket Entries
  • 08/29/2018
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  • Declaration - Declaration of Daniel L. Warhaw.pdf: Comment: Declaration of Daniel L. Warshaw

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  • 08/17/2018
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  • Notice - Notice of Appearance of DLW.pdf: Comment: NOTICE OF APPEARANCE OF DANIEL L. WARSHAW

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  • 08/16/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/BCW

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  • 08/15/2018
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  • Notice - Notice CMC reset from 10-2-18 to 10-26-18: Comment: CMC reset from 10/2/18 to 10/26/18

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  • 08/15/2018
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  • Order - Order and Notice of Reassignment of Case to Department 1 BCW: Comment: Order & Notice of Reassignment of Case to Department 1; Hon. Brian C. Walsh presiding - signed/BCW

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  • 08/15/2018
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  • Proof of Service - 8-15-2018 Proof of Service.pdf: Comment: Proof of Service

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  • 08/15/2018
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  • Notice: Appearance - Notice Appearance:

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  • 06/18/2018
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  • Summons: Issued/Filed - Summons Issued Filed: Comment: Proposed Summons

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  • 06/18/2018
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  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: Civil Case Cover Sheet

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  • 06/18/2018
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  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies): Comment: Class Action Complaint and Demand for Jury Trial

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Complaint Information

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Plaintiff Ronald Chinitz (“Plaintiff”), individually and on behalf of all others similarly situated, brings this Class Action Complaint against Apple Inc. (“Apple” or “Defendant”). Plaintiff bases the allegations below on personal knowledge as to matters related to, and known to, him. As to all other matters, Plaintiff bases his allegations on information and belief, through investigation of his counsel. Plaintiff believes substantial evidentiary support exists for the allegations below, and he seeks a reasonable opportunity for discovery.

NATURE OF THE ACTION

1. This 1s a proposed class action on behalf of all persons who owned iPads (collectively, “iPads” or “Devices”) and whose iPads experienced substantially faster battery drain after the 1Pads’ operating systems were updated to 10S 11. Further, even with subsequent updates to 10S 11, Apple Device users continue to experience what a Forbes writer called on February 21, 2018, “the never ending battery drain problems” associated with this 10S.?

2. Plaintiff’s 1Pad experienced slowness and extreme battery drain which Plaintiff believes occurred as a result of updates to his iPad’s operating system.

3. Plaintiff now brings this action individually and on behalf of the members of the proposed classes to stop Apple’s unlawful practices, seeking injunctive and monetary relief and

such additional relief as the Court may deem just and proper.

PARTIES

Plaintiff Ronald Chinitz

4, Plaintiff Ronald Chinitz is a resident of Santa Cruz, California.

5. Mr. Chinitz purchased a 64GB Wifi-enabled iPad mini 4 on October 26, 2015.

6. Mr. Chinitz updated his 1Pad with the 10S 11 so-called “update” after Apple released 10S 11 on September 19, 2017.

7. After Mr. Chinitz “updated” his 1Pad to 10S 11, the 1Pad’s battery began draining at a significant rate.

8. Before Mr. Chinitz updated his iPad to 10S 11: The 1Pad’s battery, after being fully charged, was able to provide enough power for the 1Pad that the 1Pad would be usable (without any source of power other than the battery) for around eight or nine hours before the battery needed to be recharged.

9. After Mr. Chinitz had updated his 1Pad to 10S 11: The 1Pad’s battery, after being fully charged, was able to provide enough power for the iPad that the iPad would be usable (without any source of power other than the battery) for around 15 minutes before the battery needed to be recharged.

10. Mr. Chinitz never consented to Apple interfering with his 1Pad’s battery or to Apple greatly increasing the decay rates of his 1Pad’s battery (i.e., draining his 1Pad’s battery).

11. When Mr. Chinitz purchased his iPad mini 4 from Apple, he did not expect Apple to interfere with the 1Pad’s battery or to greatly increase the decay rate of the iPad’s battery.

12. Because Mr. Chinitz updated his 1iPad to 10S 11, which resulted in the iPad’s battery draining at a substantially higher rate than it otherwise would have, he suffered injuries including that he lost the use of his 1iPad and his 1Pad lost value.

Defendant Apple Inc.

13. Defendant Apple Inc. is a corporation organized under California law.

JURISDICTION AND VENUE

Jurisdiction 15. The Court has personal jurisdiction over Apple for reasons including but not limited to the following: Apple 1s headquartered in California. 16. The Court has general subject matter jurisdiction over this unlimited civil case. The amount in controversy exceeds $25,000, and Plaintiff seeks equitable relief including but not

limited to injunctive and declaratory relief.

Venue 17. Venue 1s proper in this Court because Apple i1s headquartered in Santa Clara County.

FACTUAL ALLEGATIONS ALLEGATIONS COMMON TO ALL CAUSES OF ACTION OF THE CLASS

18. Apple released the first iPad on April 3, 2010.

19. 1Pads run using an operating system called “10S.”

20. Since introducing iPads to the American market, Apple has introduced a succession of new 1Pad models.

21. Apple also routinely electronically provides users of its iPads with upgrades for the 10S operating system, which Apple identifies with increasing numbers (e.g., 10S 9, 10S 10, 10S 10.3.3).

22. Each year, Apple, like its competitors in the market for handheld electronic tablets, must find ways to encourage prospective customers to purchase the latest models of its 1Pads.

23. On information and belief, persuading consumers to replace their existing iPads with new ones becomes more difficult as consumers become familiar with Apple’s technology and more difficult to impress with new features.

24. On information and belief, consumers will purchase a new Device if they perceive problems with the performance of their current 1Pad.

25. Apple officially released 10S 11 worldwide on September 19, 2017.

26. When Apple iPad users updated their iPads’ operating systems to 10S 11, the new operating system caused the iPads’ batteries to drain at a greatly increased rate.

27. The rate at which a battery drains 1s also referred to as the battery “decay” rate.

28. Shortly after Apple released 10S 11, electronic device maintenance company Wandera analyzed the battery decay rates of a subset of 50,000 moderate to heavy 1Pad users in its global network of enterprise mobile 1Pads running 10S 10 and 10OS 11 to compare the average battery decay rate during the period from September 18, 2017, to September 21, 2017. See WANDERA.COM/BLOG (Sept. 21, 2017), https://goo.gl/EXsWu2.

29. Wandera found that batteries on iPads that had upgraded to 10S 11 took only approximately 96 minutes to decay from 100% charge to no usable charge. See Graph No. 1, infra.

30. By contrast, Wandera found that batteries on iPads that were running 10S 10 took

approximately 240 minutes to decay from 100% charge to no usable charge. See id.

Graph No. 1 &

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31. Graph No. 1 above shows the results of Wandera’s analysis. Graph No. 1 shows how long on average it took for iPads to get from 100% to 0% battery charge for 10S 10 and iOS 11. See WANDERA.COM/BLOG (Sept. 21, 2017), https://goo.gl/EXsWu2.

32. As the foregoing shows, Apple 1Pad users experienced substantially faster battery drain as a result of updating their IPads’ operating systems to 10S 11.

33. Indeed, Apple 1Pads users that upgraded to 10S 11 experienced an average 144- minute (i.e., 60%) loss in the amount of time the battery was usable (after being fully charged) before it required recharging, as a result of the upgrade.

34. Apple released 10S 11.0.1 on September 26, 2017, as the first update to iOS 11.

35. Shortly after Apple had released 10S 11.0.1, Wandera conducted another analysis on the same subset of 50,000 moderate to heavy iPad users in its network. See Liarna La Porta, A Promising Improvement in i0S 11 Battery Life, WANDERA.COM/BLOG (Oct. 4, 2000), https://goo.gl/A19N5h. It is important to note that in Wandera’s second analysis, there were four times more iPads running i10OS 11 and iOS 11.0.1 than there were in Wandera’s initial analysis. Id.

36. In the analysis, Wandera found that the average decay rate of the batteries of the Device users it analyzed had improved after Apple released 10S 11.0.1. Graph No. 2 below shows

Wandera’s results.

Graph No. 2

Updatedbattery decay rate @ osto @ ios

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37. Wandera’s second analysis shows that even after Apple’s release of 10S 11.0.1, the average decay time of the batteries of the Apple 1Pad users that Wandera analyzed had not returned to the same average 240 minute decay time that the users enjoyed with iOS 10. See Graph No. 2, infra.

38. Wandera’s second analysis showed that the average 10S 11 time to decay from

100% to 0% had changed to 159 minutes. See Liarna La Porta, A Promising Improvement in iOS 11 Battery Life, WANDERA.COM/BLOG (Oct. 4, 2000), https://goo.gl/A19N5h.

39. The average 159 minute decay time represents a 33.75% loss from the average 240 minute decay time that the Device users previously enjoyed.

40. As of January 25, 2018, after Apple had released 10S 11.2.5, Forbes reported that Apple iPad users continued to 1dentify “poor battery life” as “the biggest i0OS 11 problem.” Gordon Kelly, Apple i0S 11.2.5 Release Has a Nasty Surprise, FORBES.COM (Jan. 25, 2018 at 08:42 PM), https://goo.gl/7x5d1h.

41. As of February 21, 2018, Forbes reported that “battery life and overall battery longevity continu[e] to dominate the 10S 11 narrative” and Apple 1iPads continued to experience “the never ending battery drain problems.” Gordon Kelly, Apple iOS 11.2.6 Release Has a Nasty Surprise, FORBES.coM (Feb. 21, 2018 at 07:40 PM), https://goo.gl/zJg7qQ.

42. As of April 3, 2018, Forbes reported that Apple had released 10S 11.3, which “finally [gave] users . . . transparency over their battery life.” Gordon Kelly, Apple i0S 11.3 Release Has Five Nasty Surprises, FORBES.COM (Apr. 3, 2018 at 7:10pm), https://goo.gl/ggQozc. According to Forbes, “[u]nfortunately, despite making these welcome . . . changes, Apple forgot

to actually improve battery life itself . . ..” Id.

Apple Harmed Plaintiff in a Manner Identical to the Manner in Which Apple

Harmed the Class

43. Plaintiff is similarly situated to all class members. By releasing 10S 11, Apple caused the decay times of the batteries of Plaintiff’s and the Class members’ 1Pads to be greatly decreased.

44, Apple did not notify Plaintiff or any of the Class members that 10S 11 would greatly decrease the decay times of their iPads’ batteries.

45. Plaintiff and the Class members did not consent to Apple substantially decreasing the decay times of their iPads’ batteries.

46. Plaintiff and the Class members suffered loss of the use of their iPads on account of Apple’s conduct, due to the substantially decreased amount of time that Plaintiff and the Class

members could use the 1Pads without having to recharge them. 47. Plaintiff’s and the Class members’ iPads lost value on account of Apple’s conduct,

since the battery decay times of the iPads were substantially decreased.

Apple Benefited Greatly Due to the Substantially Decreased Battery Decay Times That Apple’s Release of iOS 11 Caused

48. Apple possesses a strong ulterior motive to cause its customers’ 1Pads’ batteries to appear to be less able to hold a charge than they previously were. That 1s, upon information and belief, Apple brings in substantial revenue when its customers buy new batteries or new IPads because they believe their 1Pads are old and need replacement batteries or need to be replaced in their entirety by expensive new Apple 1Pads.

49. Plaintiff is informed and believes that many Class members bought new batteries on account of Apple’s conduct of draining their 1Pads’ batteries (as detailed above).

50. Plaintiff is informed and believed that many Class members bought new [Pads on

CLASS ACTION ALLEGATIONS

51. Pursuant to section 382 of the California Code of Civil Procedure, Plaintiff brings

this action on behalf of himself and a proposed class defined as follows:

The Injunctive Relief Class. All persons in California who purchased one or more 1Pads and who, during the period from September 19, 2017, through the date of class certification, upgraded the operating system on their iPads to 10S 11.

Excluded from the Injunctive Relief Class are: (a) Defendant, Defendant’s board members, executive-level officers, and attorneys, and immediately family

members of any of the foregoing persons; (b) governmental entities; (c) the Court,

the Court’s immediate family, and the Court staff; and (d) any person that timely

and properly excludes himself or herself from the Class in accordance with Court- approved procedures.

52. Additionally, pursuant to section 382, Plaintiff brings this action on behalf of

himself and a proposed class (the “Monetary Relief Class™) defined as follows:

The Monetary Relief Class. All persons in California who purchased one or more [Pads and who, during the period from September 19, 2017, through the date of class certification, upgraded the operating system on their IPads to 10S 11. Excluded from the Monetary Relief Class are: (a) Defendant, Defendant’s board members, executive-level officers, and attorneys, and immediately family members of any of the foregoing persons; (b) governmental entities; (c) the Court, the Court’s immediate family, and the Court staff; and (d) any person that timely and properly excludes himself or herself from the Class in accordance with Court- approved procedures.

Plaintiff asks the Court to adjudicate all remedies through the Monetary Relief Class.

53. Together, the Injunctive Relief Class and the Monetary Relief Class are the “Class.”

54, Certification of Plaintiff’s claims for class-wide treatment 1s appropriate because Plaintiff can prove the elements of his claims on a class-wide basis using the same evidence as individual Class members would use to prove those elements in individual actions alleging the same claims.

55. Numerosity. The size of the Class 1s so large that joinder of all Class members is impracticable. Due to the nature of Apple’s business, Plaintiff believes there are at least thousands, if not hundreds of thousands, of Class members geographically dispersed throughout California.

56. Well-Defined Community of Interest. As further alleged below, there is a well-

defined community of interest with respect to the Class, since there are (1) predominant common questions of law or fact; (2) a Class representative with claims or defenses typical of the Class;

and (3) a Class representative who can adequately represent the Class.

57. Existence and Predominance of Common Questions of Law and Fact. There are

questions of law and fact common to the Class. These questions predominate over any questions

affect only individual Class members.

58. All Class members upgraded their iPads’ operating systems to 10S 11 and

subsequently, on account of the upgrade, the iPads’ batteries drained substantially faster, such that

the time that the 1Pads could be used between battery charges (i.e., without any source of power

other than the battery) was greatly reduced.

59. Furthermore, common legal and factual questions include but are not limited to:

a.

whether Apple intentionally caused 10OS 11 to drain the batteries of Plaintiff’s and the Class members’ 1Pads;

whether Apple breached the implied covenant of good faith and fair dealing in connection with its release of 10S 11;

whether Apple had an implied contractual obligation to avoid substantially decreasing the battery decay times of Plaintiff’s and the Class members’ 1Pads;

whether Apple complied with any implied contractual obligation to avoid substantially decreasing the battery decay times of Plaintiff’s and the Class members’ 1Pads;

whether Apple interfered with Plaintiff’s and the Class members’ use of their iPads by causing the battery decay times of the [Pads’ batteries’ to be substantially decreased;

whether Apple damaged Plaintiff’s and the Class members’ property (i.e., their 1Pads) or otherwise lowered the value of the iPads by impairing the functionality and/or usefulness of the IPads’ batteries;

whether Plaintiff and the Class members are entitled to actual damages or other forms of damages or other monetary relief; and

whether Plaintiff and the Class members are entitled to equitable relief, including but not limited to injunctive relief and equitable restitution.

60. Apple engaged in a common course of conduct in contravention of the laws Plaintiff

seeks to enforce individually and on behalf of the Class members. Similar or identical statutory

and common law violations, business practices, and injuries are involved. Individual questions, if any, pale by comparison, in both quality and quantity, to the numerous common questions that dominate this action. Moreover, the common questions will yield common answers.

61. Typicality. Plaintiff’s claims are typical of the claims of the Class members because Apple injured all Class members through the uniform misconduct described herein; all Class members updated the operating systems on their IPads to 1OS 11 and were subject to greatly increased battery decay times (and substantial decreases in the amount of time the iPads were usable without recharging the battery); and Plaintiff seeks the same relief as the Class members.

62. Furthermore, there are no defenses available to Apple that are unique to Plaintiff.

63. Adequacy of Representation. Plaintiff is a fair and adequate representative of the Class because Plaintiff’s interests do not conflict with the Class members’ interests.

64. Plaintiff will prosecute this action vigorously and 1s highly motivated to seek redress against Apple.

65. Furthermore, Plaintiff has selected competent counsel that are experienced in class action and other complex litigation.

66. Plaintiff and his counsel are committed to prosecuting this action vigorously on behalf of the Class and have the resources to do so.

67. Injunctive or Declaratory Relief. Apple has acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the Class as a whole.

68. Superiority. The class action mechanism is superior to other available means for the fair and efficient adjudication of this controversy for reasons including but not limited to the

following:

a. The damages individual Class members suffered are small compared to the burden and expense of individual prosecution of the complex and extensive litigation needed to address Defendant’s conduct.

b. Furthermore, it would be virtually impossible for the Class members individually to redress effectively the wrongs done to them. Even if Class members themselves could afford such individual litigation, the court system could not. Individualized litigation would unnecessarily increase the delay and expense to all parties and to the court system and presents a potential for inconsistent or contradictory rulings and judgments. By contrast, the class action device presents far fewer management difficulties, allows the hearing of claims which might otherwise go unaddressed because of the relative expense of bringing individual lawsuits, and provides the benefits of single adjudication, economies of scale, and comprehensive supervision by a single court.

C. The prosecution of separate actions by the individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual Class members, which would establish incompatible standards of conduct for Defendant.

d. The prosecution of separate actions by individual Class members would create a risk of adjudications with respect to them that would, as a practical matter, be dispositive of the interests of other Class members not parties to

the adjudications or that would substantively impair or impede their ability to protect their interests.

69. Notice. Plaintiff and his counsel anticipate that notice to the proposed Class will be effectuated through recognized, Court-approved notice dissemination methods, which may include

CAUSES OF ACTION FIRST CAUSE OF ACTION

Unfair and Unlawful Business Acts and Practices, In Violation of the Unfair Competition Law, CAL. BUS. & PROF. CODE 17200 et seq

70. Plaintiff repeats each and every allegation contained in the paragraphs above and incorporates such allegations by reference herein.

71. Plaintiff brings this claim for violation of the Unfair Competition Law, CAL. BUS. & PROF. CODE § 17200 et seq. (“UCL”), on behalf of the Class for injunctive relief and restitution.

72. Under the UCL, “unfair competition” means and includes “any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by” the False Advertising Law, CAL. BUS. & PROF. CODE § 17500 et seq. CAL. BUS. & PROF. CODE § 17200.

73. By engaging in the acts and practices described herein, Apple has committed one or more acts of “unfair competition” as the UCL defines the term.

74. Apple committed, and continues to commit, “unlawful” business acts or practices by, among other things, violating the CLRA and other claims asserted below.

SECOND CAUSE OF ACTION

Violation of the Consumers Legal Remedies Act, CAL. C1v. CODE § 1750 et seq.

76. Plaintiff repeats each and every allegation contained in the paragraphs above and incorporates such allegations by reference herein.

77. Plaintiff brings this cause of action pursuant to the CLRA, seeking injunctive relief only.

78. Defendant’s actions, representations, and conduct have violated, and continue to violate, the CLRA because they extend to transactions that are intended to result, or which have resulted, in the sale or lease of goods or services to consumers.

79. Plaintiff and the Class members are “consumers” as the CLRA defines the term. See CAL. C1v. CODE § 1761(d).

0. By engaging in the actions, misrepresentations, and misconduct set forth in this Class Action Complaint, Defendant has violated, and continues to violate, section 1770(a)(9) and (16) of the CLRA. Specifically, in violation of California Civil Code section 1770(a)(9) and (16), Defendant’s acts and practices constitute unfair methods of competition and unfair or fraudulent acts or practices in that Defendant advertises services with the intent not to provide them as advertised, as well as misrepresents that the subject of the transaction has been supplied in accordance with a previous representation when it has not.

81. Plaintiff requests that this Court enjoin Defendant from continuing to employ the unlawful methods, acts, and practices alleged herein pursuant to California Civil Code section 1780(a)(2). If Defendant 1s not restrained from engaging in these types of practices in the future, Plaintiff and other members of the Class will continue to suffer harm.

82. Therefore, Plaintiff prays for relief as set forth below.

THIRD CAUSE OF ACTION

Trespass to Chattels

83. Plantiff repeats each and every allegation contained in the paragraphs above and incorporates such allegations by reference herein.

84. Plaintiff brings this cause of action against Apple for trespass to chattels on behalf of the Class.

85. Plaintiff and the Class members owned 1Pads.

86. Apple intentionally interfered with Plaintiff and the Class members’ use or possession of their iPads when it released 10S 11, which substantially increased the battery decay rate of the 1Pads, as detailed above.

87. Plaintiff and the Class members never consented to Apple interfering with their 1Pads’ batteries and/or greatly increasing the decay rates of the 1Pads’ batteries (i.e., draining the 1Pads’ batteries).

88. On account of Apple’s conduct of draining the Plaintiff’s and the Class members’ iPads’ batteries (as detailed above), Plaintiff and the Class members have suffered the injuries including but not limited to the following: (1) they lost use of their iPads; (2) their 1Pads lost value; (3) they purchased new batteries; and/or (4) they purchased new 1Pads.

9. Apple’s conduct of draining Plaintiff’s and the Class members’ 1Pads’ batteries (as detailed above) was a substantial factor in causing: (1) Plaintiff and the Class members to lose the use of their 1Pads; (2) Plaintiff’s and the Class members’ iPads to lose value; (3) the Class members to purchase new batteries; and/or (4) the Class members to purchase new 1Pads.

90. Therefore, Plaintiff prays for relief as set forth below.

FOURTH CAUSE OF ACTION

Breach of the Implied Covenant of Good Faith and Fair Dealing

91. Plaintiff repeats each and every allegation contained in the paragraphs above and incorporates such allegations by reference herein.

92. Plaintiff brings this cause of action against Apple on behalf of the Class for breach of the implied covenant of good faith and fair dealing.

93. Plaintiff and the Class members each entered into an agreement with Apple with respect to each of their iPads when they purchased the 1Pads.

94. Plaintiff and the Class members fulfilled their obligations under the agreements when they paid for their 1Pads in full.

95. There are no conditions precedent to Apple’s performance under the agreements. 96. Implicit within any agreement that Plaintiff and the Class members entered into with Apple with respect to the iPads is a covenant by Apple to act in good faith and deal fairly with Plaintiff and the other Class members.

97. Implicit within any agreement that Plaintiff and the Class members entered into with Apple with respect to the 1Pads is a promise by Apple not to cause the iPads’ batteries to drain substantially faster than they otherwise would, especially without providing notice that it was doing so.

98. At the time they entered into the agreements with Apple, Plaintiff and the Class members did not expect Apple to cause their iPads’ batteries to drain substantially faster than they otherwise would, especially without providing notice that it was doing so.

99. Apple deprived Plaintiff and the Class members of benefits conferred under the agreements, in violation of the parties’ expectations at the time that they entered into the agreements, in that Apple—by means of Apple’s release of the 10S 11 operating system update— caused Plaintiff’s and the Class members’ iPads’ batteries to drain substantially faster than they otherwise would have and thereby deprived Plaintiff and the Class members of the full value of their 1Pads and of time to use their iPads prior to the need to recharge the iPads’ batteries.

100. By means of Apple’s release of the iOS 11 operating system update, Apple breached the implied covenant of good faith and fair dealing by unfairly, intentionally, knowingly,

willfully, unreasonably, recklessly, arbitrarily, frivolously, and/or maliciously:

a. interfering with Plaintiff’s and the Class members’ right to receive the benefits of the agreement, including the benefit of a normal battery decay rate;

b. causing the batteries of Plaintiff’s and the Class members’ iPads to decay at

a substantially faster rate than they otherwise would have;

C. substantially diminishing the amount of time Plaintiff and the Class members could use their iPads without involving a source of power other than the 1Pads’ batteries, thereby diminishing the value of the 1Pads; and

d. engaging in such other conduct to be disclosed in discovery.

101. As a direct and proximate result of Apple’s breach of the implied covenant of good

faith and fair dealing (as described above), Plaintiff and the Class members have suffered injuries including the following: (1) they lost use of their iPads; (2) their 1Pads lost value; (3) upon information and belief, many Class members purchased new batteries; and/or (4) upon information and belief, many Class members purchased new 1Pads.

102. Therefore, Plaintiff prays for relief as set forth below

FIFTH CAUSE OF ACTION

Breach of Implied Contract

103. Plaintiff repeats each and every allegation contained in the paragraphs above and incorporates such allegations by reference herein.

104. Plaintiff brings this cause of action for breach of implied contract against Apple on behalf of the Class.

105. Plaintiff and the Class members each entered into an implied contract with Apple with respect to each of their iPads when they purchased the iPads.

106. Plaintiff and the Class members fulfilled their obligations under the implied contracts when they paid for their iPads in full.

107. There are no conditions precedent to Apple’s performance under the implied contracts.

108. In entering into the implied contracts with Plaintiff and the Class members, Apple agreed (or implicitly agreed) not to interfere with Plaintiff’s and the Class members’ 1Pads by causing the 1Pads’ batteries to drain at a substantially faster rate than they otherwise would, especially without providing notice that it was doing so.

109. In entering into the implied contracts with Plaintiff and the Class members, Apple agreed (or implicitly agreed) not to interfere with the value or usage of Plaintiff’s and the Class members’ 1Pads and/or the 1Pads’ batteries.

110. By means of Apple’s release of the i1OS 11 operating system update, Apple breached the implied contracts it made with Plaintiff and the Class members by:

a. interfering with the normal battery decay rate of Plaintiff’s and the Class members’ 1Pads;

b. causing the batteries of Plaintiff’s and the Class members’ iPads to decay at a substantially faster rate than they otherwise would have;

C. substantially diminishing the amount of time Plaintiff and the Class members could use their iPads without involving a source of power other than the 1Pads’ batteries, thereby diminishing the value of the 1Pads; and

d. engaging in such other conduct to be disclosed in discovery.

111. As a direct and proximate result of Apple’s breach of its implied contracts with Plaintiff and the Class members, Plaintiff and the Class members have suffered injuries including the following: (1) they lost use of their iPads; (2) their iPads’ lost value; (3) upon information and belief, many Class members purchased new batteries; and/or (4) upon information and belief, many Class members purchased new iPads.

112. It would violate fundamental principles of justice, equity, and good conscience to allow Apple to retain the benefits of its breach of its implied contracts with Plaintiff and the Class members.

113. Therefore, Plaintiff prays for relief as set forth below.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of the members of the Class, respectfully requests the Court to enter an Order:

A. certifying the proposed Class under section 382 of the California Code of Civil Procedure, as set forth above;

B. declaring that Defendant is financially responsible for notifying the Class members

of the pendency of this suit;

C. declaring that Defendant has committed the violations of law alleged herein; D. providing for any and all injunctive relief the Court deems appropriate; E. awarding monetary damages, including but not limited to any compensatory,

incidental, or consequential damages in an amount that the Court or jury will determine, in accordance with applicable law; F. providing for any and all equitable monetary relief the Court deems appropriate; G. awarding punitive or exemplary damages in accordance with proof and in an

amount consistent with applicable precedent; H. awarding Plaintiff reasonable costs and expenses of suit, including attorneys’ fees;

L. awarding pre- and post-judgment interest to the extent the law allows; and J. providing such further relief as this Court may deem just and proper.

JURY TRIAL DEMANDED

Plaintiff hereby demands a trial by jury. Date: June 18,2018 Respectfully submitted,

REESE LLP

By: /s/ Michael R. Reese Michael R. Reese (SBN 206773) mreese@ reesellp.com George V. Granade (SBN 316050) ggranade@ reesellp.com 100 West 93rd Street, 16th Floor New York, New York 10025 Telephone: (212) 643-0500 Facsimile: (212) 253-4272

Melissa S. Weiner

weiner@ halunenlaw.com

Amy E. Boyle

boyle@ halunenlaw.com HALUNEN LAw

1650 IDS Center

80 South Eighth Street Minneapolis, Minnesota 55402 Telephone: (612) 605-4098 Facsimile: (612) 605-4099