Case 3:16-cv-03017 Document 1 Filed 06/03/16 Page 1 of 9
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RANDY LUSKEY (STATE BAR NO. 240915)
rluskey@orrick.com
ORRICK, HERRINGTON & SUTCLIFFE LLP
The Orrick Building
405 Howard Street
San Francisco, California 94105
Telephone:
+1-415-773-5700
Facsimile:
+1-415-773-5750
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Attorney for Defendant
APPLE, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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COLLEEN PALOMINO and IRENE
MCDONNELL, individually and on behalf of
all others similarly situated,
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Plaintiff,
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Case No.
NOTICE OF REMOVAL UNDER 28
U.S.C. §§ 1332, 1441, 1446 AND 1453
BY DEFENDANT APPLE, INC.
v.
APPLE, INC., and DOES 1-50, inclusive,
Defendant.
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ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
Case 3:16-cv-03017 Document 1 Filed 06/03/16 Page 2 of 9
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TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF
CALIFORNIA AND TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE that Defendant Apple, Inc. (“Apple” or “Defendant”) removes
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the above-captioned action from the Superior Court of the State of California in and for the
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County of Santa Clara pursuant to 28 U.S.C. Sections 1332(d), 1441, 1446 and 1453 based on the
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following grounds.
BACKGROUND
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1.
On April 29, 2016, Plaintiffs Colleen Palomino and Irene McDonnell
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(“Plaintiffs”), on behalf of themselves and others similarly situated, filed a Complaint against
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Apple in the Superior Court of the State of California, County of Santa Clara, entitled Palomino
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et al., v. Apple, Inc. and Does 1-50, Case No. 16-CV-294540 (the “Complaint”). The allegations
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of the Complaint are incorporated by reference in this Notice of Removal without necessarily
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admitting any of them.
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2.
The Complaint purports to assert a class-wide cause of action for relief against
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Apple stemming from Plaintiffs’ and putative class members creating an “Apple ID” and/or
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accepting “terms and conditions” to access various Apple “stores,” including the “iTunes Store,
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the Mac App Store, the App Store for Apple TV, the iBooks Store, Apple Music.” See Compl. ¶¶
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2-4. Specifically, the Complaint alleges that the terms and conditions associated with using these
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“stores” violate New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act
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(“TCCWNA”), N.J.S.A. § 56:12-14 et seq. because they disclaim legal liability inconsistent with
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New Jersey law. See, e.g., Compl. ¶¶ 6-7; 64-66.
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3.
On April 28, 2016, counsel for Plaintiffs, Carlson Lynch Sweet Kilpela &
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Carpenter, LLP, filed a nearly identical class action complaint against Apple on behalf of a
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different plaintiff in this District. See Silkowski v. Apple, Inc., Case No. 5:16-cv-02338 (N.D.
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Cal. Apr. 28, 2016).
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ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
-1-
NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
Case 3:16-cv-03017 Document 1 Filed 06/03/16 Page 3 of 9
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TIMELINESS OF REMOVAL
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4.
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on May 4, 2016. See Exhibit E (Service of Process Transmittal). The Complaint and Summons
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are attached hereto as Exhibits A and C, respectively. This Notice of Removal is timely filed. 28
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U.S.C. § 1446(b) (notice of removal shall be filed within thirty days of Apple’s receipt of the
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Summons and Complaint).
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5.
No other pleadings have been filed or served to Apple’s knowledge related to this
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Apple is informed and believes, and on that basis alleges, that there have been no
case.
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other named defendants in this case and that no other defendant, whether named or not, has been
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served with or otherwise received the Complaint in this action.
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DIVERSITY JURISDICTION UNDER CAFA
7.
This action is removable under the Class Action Fairness Act of 2005 (“CAFA”),
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codified in 28 U.S.C. § 1332(d). The Court has original jurisdiction of this Complaint under
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section 1332(d)(2), and the Complaint is removable pursuant to the provisions of 28 U.S.C.
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sections 1441(a) and 1453 as it is a class action in which at least one class member is a citizen of
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a state different from that of Apple, the class size exceeds 100 members, and the amount in
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controversy exceeds $5,000,000, exclusive of interest and costs. Serrano v. 180 Connect, Inc.,
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478 F.3d 1018, 1020-21 (9th Cir. 2007). Further, no defendant identified in the Complaint is a
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state, officer of a state or a governmental agency. 28 U.S.C. § 1332(d)(5).
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Complete Diversity of Citizenship Exists
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Plaintiff’s Citizenship For Purposes of CAFA (28 U.S.C. § 1332(d)). For
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diversity purposes, a person is a “citizen” of the state in which he or she is domiciled. Boon v.
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Allstate Ins. Co., 229 F. Supp. 2d 1016, 1019 (C.D. Cal. 2002) (citing Kanter v. Warner-Lambert
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Co., 265 F.3d 853, 857 (9th Cir. 2001)). For purposes of diversity jurisdiction, citizenship is
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determined by the individual’s domicile at the time the lawsuit is filed. Boon, 229 F. Supp. 2d at
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1019. Residence creates a presumption of domicile. Washington v. Hovensa LLC, 652 F.3d 340,
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345 (3rd Cir. 2011); State Farm Mut. Auto Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994).
ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
Apple’s agent for service of process was served with the Summons and Complaint
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NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
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Once the removing party produces evidence of domicile, the burden shifts to the other party to
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come forward with contrary evidence, if any. Dyer, 19 F.3d at 519.
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Plaintiffs allege that they are residents and citizens of New Jersey. Compl. ¶ 12.
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Apple is therefore informed and believes that at the time Plaintiffs filed this civil action, Plaintiffs
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were citizens of New Jersey. Moreover, Plaintiffs aver that the putative class members are “all
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New Jersey residents who have created an Apple ID and/or agreed to the Terms and Conditions
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within the applicable statute of limitations.” Id. ¶ 51.
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Apple’s Citizenship For Purposes of CAFA (28 U.S.C. § 1332(d)). For
diversity purposes, a corporation “shall be deemed a citizen of any State by which it has been
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incorporated and of the State where it has its principal place of business.” 28 U.S.C.
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§ 1332(c)(1). The “principal place of business” is the state where the entity’s officers direct,
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control and coordinate corporate activities, generally where it maintains its headquarters. See The
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Hertz Corp v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 1192 (2010) (adopting “nerve center”
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approach to determine corporation's principal place of business).
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11.
For purposes of diversity, Apple is a citizen of California (its state of incorporation
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and principal place of business). See Declaration of Michael Jaynes (“Jaynes Decl.”), ¶ 2; 28
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U.S.C. § 1331(c)(1) (for diversity purposes, a corporation is deemed to be a citizen of (1) the state
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under whose laws it is organized; and (2) the state of its “principal place of business.”); see also
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David v. HSBC Bank Nevada, N.A., 557 F.3d 1026, 1028 (9th Cir. 2009).
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12.
At the time this action was commenced, Apple was, and still is, a corporation
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organized and existing under and by virtue of the laws of the State of California. See Jaynes
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Decl., ¶ 2. Apple’s principal place of business is also located in California. Id. Apple’s U.S.
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headquarters are located in Cupertino, California. Id.
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13.
Doe Defendants. While Plaintiffs name John Does 1-50 as defendants, the
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citizenship of fictitious defendants is disregarded for purposes of establishing removal jurisdiction
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under 28 U.S.C. § 1332. See 28 U.S.C. § 1441(a); see also Bryant v. Ford Motor Co., 886 F.2d
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1526 (9th Cir. 1989), cert. denied, 493 U.S. 1076 (1990).
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ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
-3-
NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
Case 3:16-cv-03017 Document 1 Filed 06/03/16 Page 5 of 9
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citizen of a state different from that of Defendant Apple, as Plaintiffs are citizens of New Jersey
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and Apple is a citizen of California.
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The Putative Class Exceeds 100 Members
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Plaintiffs seeks to represent “all New Jersey residents who have created an Apple
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ID and/or agreed to the Terms and Conditions” during the putative class period. Compl. ¶ 51.
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Plaintiffs’ proposed class far exceeds 100 persons—indeed, Plaintiffs allege that the putative class
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includes as many as “thousands of individuals.” Compl. ¶ 53 (emphasis added).
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Plaintiffs Seek More Than $5,000,000
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The jurisdictional amount is satisfied. Apple denies Plaintiffs’ claims in their
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entirety, but provides the following analysis of potential damages (without admitting liability)
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based on the allegations in Plaintiffs’ Complaint in order to demonstrate that Plaintiffs’
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Complaint puts a sufficient amount “in controversy” to warrant removal under 28 U.S.C. §
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1332(d).
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Removal is proper if, from the allegations of the Complaint, it is more likely than
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not that the amount in controversy exceeds $5,000,000. See Lowdermilk v. United States Bank
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Nat’l Assoc., 479 F.3d 994, 1000 (9th Cir. 2007). What matters is the amount put in controversy
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by Plaintiffs’ complaint, not what amount the defendant will actually owe (if anything). “[T]he
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amount in controversy is simply an estimate of the total amount in dispute, not a prospective
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assessment of the defendant’s liability.” Lewis v. Verizon Comm., Inc., 627 F.3d 395, 400 (9th
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Cir. 2010).
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Plaintiffs’ counsel filed a duplicative and nearly identical lawsuit in this Court the
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day before filing the present Complaint in state court, substituting named plaintiffs but otherwise
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raising the same claims against the same defendant and seeking the same relief. Silkowski v.
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Apple Inc., Case No. 5:16-cv-02338 (N.D. Cal. Apr. 28, 2016). In that action, counsel alleges
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violations of the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act, (¶ 1), asserts
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that the amount in controversy exceeds $5,000,000, declares that the New Jersey plaintiffs are
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sufficiently diverse from Apple, and that the putative class exceeds 100 members (¶ 9). A true
ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
Based on the Complaint, therefore, at least one member of the putative class is a
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NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
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Plaintiffs individually and on behalf of the putative class pray for a “declaratory
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judgment,” “injunctive relief,” “actual damages,” “attorneys’ fees and court costs,” and “other
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relief the Court deems just, equitable and appropriate.” Compl. ¶ 68(a)-(f). While Apple denies
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the validity of Plaintiffs’ individual and class action claims, the class stands to recover in excess
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of $5,000,000 based on the allegations set forth in the Complaint.
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Plaintiffs assert that the putative class will be comprised of “all New Jersey
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residents who have created an Apple ID and/or agreed to the Terms and Conditions within the
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applicable statute of limitations.” Compl. ¶ 51. Plaintiffs seek damages of at least $100 per class
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member, which would require a class of just 50,000 iTunes subscribers to satisfy the threshold.
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More than 50,000 New Jersey residents have registered an iTunes account and agreed to the
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iTunes Terms and Conditions within the past 6 years. Jaynes Decl., ¶ 3.
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Plaintiffs individually and on behalf of the putative class seek an injunction that:
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(a) “remov[es] from the Terms and Conditions the language declared in violation of N.J.S.A.
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56:12-15 and 56:12-16.” Compl. ¶ 68(b). Where a lawsuit seeks injunctive relief, “it is well
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established that the amount in controversy is measured by the value of the object of the
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litigation.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347 (1977). This includes
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a defendant’s costs in complying with the injunction sought. Franceschi Jr. v. Harrah’s Entm’t,
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No. 2:10–cv–00205–RLH–RJJ, 2011 WL 9305, at *2 (D. Nev. Jan. 3, 2011); Guglielmi ex rel.
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Guglielmi v. Anheuser-Busch Cos., Inc., No. CV-04-594-ST, 2005 WL 300064 (D. Or. Feb. 8,
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2005), report & recommendation adopted sub nom. Guglielmi v. Anheuser-Busch Cos., Inc., No.
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CV 04-594ST, 2005 WL 524721 (D. Or. Mar. 4, 2005).
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Plaintiffs also pray for attorneys’ fees and costs, which are considered in
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ascertaining the amount at issue in this case. Compl. ¶ 68; see Guglielmino v. McKee Food Corp.,
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506 F.3d 696, 700 (9th Cir. 2007); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir.
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1998) (“[W]here an underlying statute authorizes an award of attorneys’ fees, either with
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mandatory or discretionary language, such fees may be included in the amount in controversy.”).
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ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
and correct copy of the complaint filed in the identical action is attached hereto as Exhibit F.
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Plaintiffs’ prayer for “whatever other relief the Court deems just, equitable and
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NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
Case 3:16-cv-03017 Document 1 Filed 06/03/16 Page 7 of 9
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appropriate” may include money damages. See Fed. R. Civ. P. 54(c) (“[F]inal judgment should
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grant the relief to which each party is entitled, even if the party has not demanded that relief in its
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pleadings.”); cf. Davis v. John Hancock Viable Life Ins. Co., 295 Fed. Appx. 245, 246-47 (9th
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Cir. 2008).
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§ 56:12-17 ($100) and undisclosed “actual damages” for “each” Plaintiff and class member for
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each statutory violation of 56:12-15 and 56:12-16. Compl. ¶¶ 67-68.
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Apple expressly denies Plaintiffs’ allegations and specifically denies that any of its
terms and conditions violate the TCCWNA, but in determining whether the jurisdictional
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minimum is met, the Court must consider the allegations of the Complaint and all recoverable
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damages including statutory penalties and attorneys’ fees. Korn v. Polo Ralph Lauren Corp., 536
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F. Supp. 2d 1199, 1205 (E.D. Cal. 2008) (“In measuring the amount in controversy, a court must
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assume that the allegations of the complaint are true and that a jury will return a verdict for the
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plaintiff on all claims made in the complaint. The ultimate inquiry is what amount is put ‘in
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controversy’ by the plaintiff’s complaint, not what a defendant will actually owe”) (emphasis in
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original); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (attorneys’ fees
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properly included in determining the amount in controversy).
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Based on Plaintiffs’ allegations, the minimum statutory damages for the alleged
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violations of N.J.S.A. § 56:12-15 and § 56:12-16 would be $100 for each of the thousands of
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class members, not including any “actual damages” that Plaintiffs fail to identify. Assuming
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Plaintiffs can recover on their claims, they would likely assert entitlement to attorneys’ fees of
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approximately 25% of the total recovery. In re Quintus Securities Litig., 148 F. Supp. 2d 967,
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973 (N.D. Cal. 2001) (noting in the class action settlement context that the benchmark for setting
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attorneys’ fees is 25 percent of the common fund); see also Frederico v. Home Depot, 507 F.3d
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188, 199 (3d Cir. 2007) citing In re Rite Aid Corp. Securities Litig., 396 F.3d 294, 303 (3d Cir.
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2005) (“Fees should be as much as thirty percent of the judgment”).
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ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
Here, the Complaint seeks to recover minimum statutory damages under N.J.S.A.
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Thus, although Apple denies Plaintiffs’ factual allegations or that they or the
putative class members they purport to represent are entitled to the relief for which they have
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NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
Case 3:16-cv-03017 Document 1 Filed 06/03/16 Page 8 of 9
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prayed, based on Plaintiffs’ allegations and prayer for relief, the amount in controversy is well over
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the $5,000,000 threshold. Removal of this action is proper.
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Because diversity of citizenship exists—the Plaintiffs are citizens of New Jersey
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and Apple is a citizen of the State of California, the class size exceeds 100 members, and the
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amount in controversy exceeds five million dollars—this Court has original jurisdiction of the
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action pursuant to 28 U.S.C. section 1332(d)(2). This action is therefore a proper one for removal
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to this Court. None of the bases for declining jurisdiction exist under 28 U.S.C. section
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1332(d)(3) and (4) because the proposed class members are residents of New Jersey.
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VENUE
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Venue lies in the Northern District of this Court pursuant to 28 U.S.C.
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sections 1441, 1446(a), and 84(a). This action originally was brought in the Superior Court of the
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State of California, County of Santa Clara.
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NOTICE OF REMOVAL
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30.
This Notice of Removal will be promptly served on Plaintiffs and filed with the
Clerk of the Superior Court of the State of California in and for the County of Santa Clara.
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31.
In compliance with 28 U.S.C. section 1446 (a), attached are copies of the state-
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court papers received by Apple herein (the Complaint, attached as Exhibit A; Civil Case Cover
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Sheet, attached as Exhibit B; Summons, attached as Exhibit C; Civil Lawsuit Notice, attached as
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Exhibit D; and Service of Process Transmittal, attached as Exhibit E). Also attached as Exhibit F
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is the complaint in Silkowski v. Apple, Inc., Case No. 5:16-cv-02338 (N.D. Cal. Apr. 28, 2016).
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ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
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NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
Case 3:16-cv-03017 Document 1 Filed 06/03/16 Page 9 of 9
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WHEREFORE, Apple prays that this civil action be removed from the Superior Court of
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the State of California, County of Santa Clara, to the United States District Court of the Northern
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District of California.
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Dated: June 3, 2016
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RANDY LUSKEY
Orrick, Herrington & Sutcliffe LLP
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By: /s/ Randy Luskey
RANDY LUSKEY
Attorneys for Defendant
APPLE INC.
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ORRICK, HERRINGTON &
SUTCLIFFE LLP
ATTORNEYS AT LAW
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NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,
1441, 1446, AND 1453
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
Case 3:16-cv-03017 Document 1-5 Filed 06/03/16 Page 2 of 4
Service of Process
Transmittal
TO:
Ami Gomez
Apple Inc.
1 Infinite Loop, M/S 169-2NYJ
Cupertino, CA 95014-2083
RE:
Process Served in California
FOR:
Apple Inc. (Domestic State: CA)
05/04/2016
CT Log Number 529108726
ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
TITLE OF ACTION:
COLLEEN PALOMINO and IRENE MCDONNELL, etc., Pltfs. vs. APPLE, INC., etc., et al.,
Dfts.
DOCUMENT(S) SERVED:
Summons, Cover Sheet, Notice, Complaint, Information Sheet, Attachment(s)
COURT/AGENCY:
Santa Clara County - Superior Court, CA
Case # 16CV294540
NATURE OF ACTION:
Plaintiff seeking relief from the violations made by Defendant
ON WHOM PROCESS WAS SERVED:
C T Corporation System, Los Angeles, CA
DATE AND HOUR OF SERVICE:
By Process Server on 05/04/2016 at 14:50
JURISDICTION SERVED :
California
APPEARANCE OR ANSWER DUE:
Within 30 calendar days after this summons and legal papers are served
ATTORNEY(S) / SENDER(S):
Todd D. Carpenter
CA1LSON LYNCH SWEET KILPELA & CARPENTER, LLP
402 West Broadway, 29th Floor
San Diego, CA 92101
619-756-6994
ACTION ITEMS:
SOP Papers with Transmittal, via Fed Ex Priority Overnight , 782982975809
Image SOP
Email Notification, Noreen Krall nkrall@apple.com
Email Notification, David Melaugh melaugh@apple.com
Email Notification, Colleen Brown colleen_brown@apple.com
Email Notification, Erica Tierney etierney@apple.com
Email Notification, Diana Loop loop@apple.com
Email Notification, Sarita Venkat saritav@apple.com
Email Notification, Tom Vigdal tvigdal@apple.com
Email Notification, Cyndi Wheeler cwheeler@apple.com
Page 1 of 3 / SM
Information displayed on this transmittal is for CT
Corporation's record keeping purposes only and is provided to
the recipient for quick reference. This information does not
constitute a legal opinion as to the nature of action, the
amount of damages, the answer date, or any information
contained in the documents themselves. Recipient is
responsible for interpreting said documents and for taking
appropriate action. Signatures on certified mail receipts
confirm receipt of package only, not contents.
Case 3:16-cv-03017 Document 1-5 Filed 06/03/16 Page 3 of 4
Service of Process
Transmittal
TO:
Ami Gomez
Apple Inc.
1 Infinite Loop, M/S 169-2NYJ
Cupertino, CA 95014-2083
RE:
Process Served in California
FOR:
Apple Inc. (Domestic State: CA)
05/04/2016
CT Log Number 529108726
Email Notification, Heather Moser hmoser@apple.com
Email Notification, Ami Gomez ami_r_gomez@apple.com
Email Notification, Tim O'Neil toneil@apple.com
Email Notification, Charstie Wheelock wheelock@apple.com
Email Notification, Erik Floyd efloyd@apple.com
Email Notification, Beth Kellermann kellermann@apple.com
Email Notification, Andrew Song asong@apple.com
Email Notification, Ryan Moran rmoran@apple.com
Email Notification, David Weiskopf dweiskopf@apple.com
Email Notification, Jennifer Brown jennifer_brown@apple.com
Email Notification, Susan Guarino sguarino@apple.com
Email Notification, Andrew Farthing afarthing@apple.com
Email Notification, Ash Upreti aupreti@apple.com
Email Notification, Jen Yokoyama jyokoyama@apple.com
Email Notification, Scott Murray scott_murray@apple.com
Email Notification, Pami Vyas pvyas@apple.com
Email Notification, Kim Moore kim_moore@apple.com
Email Notification, Lisa Olle olle@apple.com
Email Notification, Victoria Nakaahiki victoria_nakaahiki@apple.com
Email Notification, Maya Kumar maya_kumar@apple.com
Email Notification, Phil Rawlinson prawlinson@apple.com
Email Notification, Jessica Hannah jessica_hannah@apple.com
Email Notification, Kate Kaso-Howard kkasohoward@apple.com
Page 2 of 3 / SM
Information displayed on this transmittal is for CT
Corporation's record keeping purposes only and is provided to
the recipient for quick reference. This information does not
constitute a legal opinion as to the nature of action, the
amount of damages, the answer date, or any information
contained in the documents themselves. Recipient is
responsible for interpreting said documents and for taking
appropriate action. Signatures on certified mail receipts
confirm receipt of package only, not contents.
Case 3:16-cv-03017 Document 1-5 Filed 06/03/16 Page 4 of 4
Service of Process
Transmittal
TO:
Ami Gomez
Apple Inc.
1 Infinite Loop, M/S 169-2NYJ
Cupertino, CA 95014-2083
RE:
Process Served in California
FOR:
Apple Inc. (Domestic State: CA)
05/04/2016
CT Log Number 529108726
Email Notification, Marc Breverman mbreverman@apple.com
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Case 3:16-cv-03017 Document 1-6 Filed 06/03/16 Page 1 of 16
EXHIBIT F
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CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP
Todd D. Carpenter (CA 234464)
Brittany C. Casola (CA 306561)
402 West Broadway, 29th Floor
San Diego, California 92101
Telephone: 619.756.6994
Facsimile: 619.756.6991
tcarpenter@carlsonlynch.com
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6
Attorney for Plaintiff Thomas Silkowski
and Proposed Class Counsel
7
8
IN THE UNITED STATES DISTRICT COURT
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
10
SAN JOSE DIVISION
11
12
13
THOMAS SILKOWSKI, on behalf of himself
and all others similarly situated,
COMPLAINT
14
Plaintiff,
CLASS ACTION
15
vs.
16
17
Case No.
APPLE INC., a CALIFORNIA corporation, and
DOES 1- 50, inclusive,
1. Violation of New Jersey’s Truth-inConsumer Contract, Warranty and Notice
Act, N.J.S.A. 56:12-14, et seq.
DEMAND FOR JURY TRIAL
18
Defendant.
19
20
21
22
23
24
25
26
27
28
COMPLAINT
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Plaintiff THOMAS SILKOWSKI brings this action on behalf of himself and all others similarly
2
situated against APPLE INC., and states:
3
I.
4
NATURE OF ACTION
1.
Plaintiff brings this action individually and on behalf of all others similarly situated
5
against Apple Inc. (“Defendant” or “Apple”), alleging violations of the New Jersey Truth-in-Consumer
6
Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. 56:12-14, et. seq.
7
2.
The TCCWNA was enacted specifically to prevent deception in consumer contracts and to
8
incentivize businesses to draft contracts that are clear and understandable to all consumers, and that
9
clearly explain the legal rights of consumers and the legal responsibilities of businesses.
10
11
12
3.
Defendant operates the iTunes Store, the Mac App Store, the App Store, the App Store for
Apple TV, the iBooks Store, and Apple Music (collectively the “Stores”).
4.
In order to access the Stores, consumers must create an Apple ID and/or agree to the
13
iTunes terms and conditions (the “Terms and Conditions”). As a precondition to creating an Apple ID,
14
Defendant requires all consumers to agree to the Terms and Conditions.
15
5.
The Terms and Conditions violate the TCCWNA because they contain provisions that
16
violate clearly established legal rights of Plaintiff and the proposed class, and ignore the legal
17
responsibilities of Defendant.
18
6.
Specifically, the Terms and Conditions contain provisions that purport to: 1) disclaim
19
liability for claims brought for Defendant’s negligent, willful, malicious and wanton misconduct; 2) bar
20
claims for personal injury and punitive damages; 3) ban consumers from asserting claims against
21
Defendant for deceptive and fraudulent conduct; and 4) require Store users to indemnify and hold
22
harmless Defendant for any claims brought against Defendant for its negligent, willful, malicious and
23
wanton misconduct. All of the aforementioned provisions are in direct contravention of rights afforded
24
to Plaintiff and the proposed class under New Jersey law.
25
7.
The inclusion of these violative provisions in the Terms and Conditions deceives
26
consumers into thinking that they are enforceable and accordingly, gives consumers the impression that
27
they are unable to enforce rights they otherwise have under New Jersey statutory and common law.
28
8.
As a result of Defendant’s illegal conduct, Plaintiff, on behalf of himself and the Class,
1
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seeks statutory penalties, actual damages, attorneys’ fees, costs of suit, and any additional legal or
2
equitable relief the Court deems appropriate.
3
II.
4
JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT
9.
This Court has original jurisdiction of this Action pursuant to the Class Action Fairness
5
Act, 28 U.S.C §1332(d). The matter in controversy, exclusive of interest and costs, exceeds the sum or
6
value of $5,000,000, and is a class action in which at least some members of the proposed class have a
7
different citizenship from Defendant. There are more than 100 putative class members.
8
9
10
10.
this action because Defendant is headquartered in this District and conducts substantial business in this
District.
11
12
The Northern District of California has personal jurisdiction over the Defendant named in
11.
Venue is proper in the Northern District of California under 28 U.S.C. § 1391(b) because
Defendant is headquartered in this District and transacts substantial business in this District.
13
12.
Assignment is proper to the San Jose Division of the Northern District of California under
14
Civil L.R. 3-2(c) and (e) because Defendant is headquartered in Santa Clara County and transacts
15
substantial business in Santa Clara County.
16
III.
17
18
PARTIES
13.
Plaintiff, Thomas Silkowski, is and, at all times relevant hereto, was, a resident and citizen
of the State of New Jersey.
19
14.
Defendant Apple Inc. is a publicly traded company headquartered at 1 Infinite Loop,
20
Cupertino, California 95014 and is a citizen of California.
21
IV.
RELEVANT LAW AND STATUTES
22
A.
The New Jersey Truth-in-Consumer Contract, Warranty and Notice Act
23
15.
The TCCWNA was enacted over thirty years ago because “[f]ar too many consumer
24
contracts, warranties, notices and signs contain provisions which clearly violate the rights of consumers.
25
Even though these provisions are legally invalid or unenforceable, their very inclusion in a contract,
26
warranty, notice or sign deceives a consumer into thinking that they are enforceable and for this reason
27
the consumer often fails to enforce his rights.” Statement, Bill No. A1660, 1981 N.J. Laws, Chapter
28
454, Assembly No. 1660, page 2.
2
COMPLAINT
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1
16.
The primary goal of the TCCWNA is to prevent confusion and deception among
2
consumers as to both their legal rights, and the responsibilities of businesses operating in New Jersey.
3
The TCCWNA accomplishes this goal in three ways.
4
17.
First, “No seller, lessor, creditor, lender or bailee shall in the course of his business offer
5
to any consumer or prospective consumer or enter into any written consumer contract or give or display
6
any written consumer warranty, notice or sign after the effective date of this act which includes any
7
provision that violates any clearly established legal right of a consumer or responsibility of a seller,
8
lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the
9
consumer contract is signed or the warranty, notice or sign is given or displayed.” N.J.S.A. 56:12-15.
10
11
18.
Second, the TCCWNA prohibits any provision in a consumer contract or notice from
requiring the consumer to waive his or her rights under the TCCWNA. N.J.S.A. 56:12-16.
12
19.
Third, the TCCWNA provides that a contract or notice cannot state in a general, non-
13
particularized fashion that some of its provisions may be void, inapplicable, or unenforceable in some
14
states, without specifying whether the provisions are void, inapplicable or unenforceable in New Jersey.
15
Id.
16
20.
A “consumer” under the TCCWNA is “any individual who buys, leases, borrows, or bails
17
any money, property or service which is primarily for personal, family or household purposes.” N.J.S.A.
18
56:15.
19
20
21.
A “consumer contract” is defined as a written agreement in which an individual, for
personal, family and household purposes, and for cash or credit:
21
a) Leases of licenses real or personal property;
22
b) Obtains credit;
23
c) Obtains insurance coverage;
24
d) Borrows money;
25
e) Purchases real or personal property;
26
f) Contracts for services; or
27
g) Enters into a service contract.
28
N.J.S.A. 56:12-1.
3
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22.
Any person who violates the TCCWNA “shall be liable to the aggrieved consumer for a
2
civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer,
3
together with reasonable attorney’s fees and court costs.” N.J.S.A. 56:12-17.
4
B.
Statutory and Common Law Rights of New Jersey Consumers
5
23.
Under New Jersey common law, persons and entities have a duty to avoid unnecessary
6
risk of personal and economic injury to others.
7
established right to recover damages under New Jersey common law.
8
24.
Persons harmed by negligent acts have a clearly
Under New Jersey’s Punitive Damages Act (the “PDA”) persons are granted the right to
9
recover punitive damages when they prove “that the harm suffered was the result of the defendant’s acts
10
or omissions and such acts or omissions were actuated by actual malice or accompanied by a wanton and
11
willful disregard of persons who foreseeably might be harmed by those acts or omissions.” N.J.S.A.
12
2A:15-5.12.
13
14
15
25.
Under New Jersey’s Consumer Fraud Act (the “CFA”), N.J.S.A. § 56:8–2 et seq., persons
are granted the right to recover for fraudulent and deceptive conduct.
26.
The CFA targets unlawful sales and advertising practices designed to induce consumers to
16
purchase merchandise or real estate, and is designed to address misconduct in the marketing of
17
merchandise and real estate whereby the consumer could be victimized by being lured into a purchase
18
through fraudulent, deceptive, or other similar kinds of selling or advertising practices.
19
27.
The CFA prohibits “[t]he act, use or employment by any person of any unconscionable
20
commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing,
21
concealment, suppression, or omission of any material fact with intent that others rely upon such
22
concealment, suppression or omission, in connection with the sale or advertisement of any merchandise
23
or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person
24
has in fact been misled, deceived or damaged thereby … [.]” N.J.S.A. § 56:8–2.
25
28.
The CFA entitles any person who suffers any ascertainable loss of money or property as a
26
result of the use or employment by another person of any method, act, or practice declared unlawful
27
under the CFA to recover treble damages, attorneys’ fees, filing fees, reasonable costs of suit, and any
28
other appropriate legal or equitable relief. N.J.S.A. § 56:8-19.
4
COMPLAINT
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29.
In line with these rights, the New Jersey legislature has set forth the following examples
2
of provisions that violate clearly established legal rights and responsibilities under the TCCWNA:
3
“Examples of [] provisions [in violation of the TCCWNA] are those that deceptively claim that a seller or
4
lessor is not responsible for any damages caused to a consumer, even when such damages are the result
5
of the seller’s or lessor’s negligence. These provisions provide that the consumer assumes all risks and
6
responsibilities, and even agrees to defend, indemnify and hold harmless the seller from all liability.”
7
Statement, Bill No. A1660, 1981 N.J. Laws, Chapter 454, Assembly No. 1660, page 2.
8
V.
FACTUAL BACKGROUND
9
A.
The Terms and Conditions Were Presented to Plaintiff and the Class
10
30.
As described above, Apple operates the iTunes Store, the Mac App Store, the App Store,
11
the App Store for Apple TV, the iBooks Store, and Apple Music. The iTunes Store allows consumers to
12
access, purchase or rent digital content for cash or credit. The Mac App Store, the App Store, the App
13
Store for Apple TV and the iBooks Store allow consumers to license software products and digital
14
content for cash or credit. Apple Music allows consumers to access digital music for cash or credit.
15
31.
In order to access any of the Stores, consumers must create an Apple ID and/or agree to
16
the Terms and Conditions. Before any consumer can create his or her Apple ID, he or she is presented
17
with, and must agree to, the Terms and Conditions.
18
32.
Plaintiff, an iTunes customer, was presented and agreed to the Terms and Conditions
19
when he created his Apple ID and when he accessed the iTunes Store. Plaintiff has purchased hundreds
20
of songs from the iTunes Store as well as several movies and other services.
21
22
23
33.
they created their Apple IDs and when they accessed the Stores.
B.
24
25
26
27
28
The class members also were presented and agreed to the Terms and Conditions when
The Terms and Conditions Violate the TCCWNA
i.
34.
The Terms and Conditions violate N.J.S.A. 56:12-15
The Terms and Conditions presented to Plaintiff and the Class members contain
provisions that violate clearly established legal rights and responsibilities.
35.
The Terms and Conditions, in reference to the iTunes Store, state, “IN NO CASE SHALL
APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS,
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OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE,
2
SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE
3
ITUNES SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF
4
THE ITUNES SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS
5
IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF
6
THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE
7
MADE AVAILABLE VIA THE ITUNES SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY.
8
BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE
9
LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH
10
STATES OR JURISDICTIONS, APPLE’S LIABILITY SHALL BE LIMITED TO THE EXTENT
11
PERMITTED BY LAW.”
12
36.
The Terms and Conditions, in reference to the Mac App Store, the App Store, the App
13
Store for Apple TV and the iBooks Store, state, “IN NO CASE SHALL APPLE, ITS DIRECTORS,
14
OFFICERS,
15
LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL,
16
OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE APP AND
17
BOOK SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF
18
THE APP AND BOOK SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR
19
OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A
20
RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR
21
OTHERWISE MADE AVAILABLE VIA THE APP AND BOOK SERVICES, EVEN IF ADVISED OF
22
THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE
23
EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL
24
DAMAGES, IN SUCH STATES OR JURISDICTIONS, APPLE'S LIABILITY SHALL BE LIMITED
25
TO THE EXTENT PERMITTED BY LAW.”
26
37.
EMPLOYEES,
AFFILIATES,
AGENTS,
CONTRACTORS,
PRINCIPALS,
OR
The Terms and Conditions, in reference to the Apple Music, state, “IN NO CASE SHALL
27
APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS,
28
OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE,
6
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SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE APPLE
2
MUSIC SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF
3
THE APPLE MUSIC SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR
4
OMISSIONS IN ANY CONTENT OR APPLE MUSIC PRODUCTS, OR ANY LOSS OR DAMAGE
5
OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR APPLE MUSIC
6
PRODUCTS POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLE
7
MUSIC SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR
8
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR
9
CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS,
10
11
APPLE'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.”
38.
Each of these provisions violate clearly established legal rights of Plaintiff and the Class,
12
and misstate the clearly established legal responsibilities of Defendant, under New Jersey law, including
13
New Jersey common law, the CFA and the PDA.
14
39.
These provisions violate the clearly established legal rights of Plaintiff and the Class to
15
recover damages for Defendant’s negligent conduct and for Defendant’s violations of the CFA. They
16
also violate Plaintiff’s and the Class’s clearly established legal right to seek punitive damages under the
17
PDA for Defendant’s malicious, wanton or willful misconduct. Similarly, these provisions violate
18
clearly established legal responsibilities of Defendant to refrain from causing unreasonable risk and harm
19
to Plaintiff and the Class, to refrain from causing Plaintiff and the Class to purchase and/or license
20
content or products from the Stores through deception and fraud, and to refrain from acting willfully and
21
maliciously, or with wanton disregard and thereby harming Plaintiff and the Class. For all of these
22
reasons, the Terms and Conditions violate the TCCWNA.
23
24
ii.
40.
The Terms and Conditions violate N.J.S.A. 56:12-16
The Terms and Conditions presented to Plaintiff and the Class members contain
25
provisions that state in a general non-particularized fashion that they are void, inapplicable or
26
unenforceable in some jurisdictions, without stating whether they are void, inapplicable or unenforceable
27
in New Jersey.
28
41.
The Terms and Conditions, in reference to licensed applications, state, “TO THE
7
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EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR
2
PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL
3
DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF
4
PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL
5
DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO
6
USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF
7
LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN
8
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT
9
ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR
10
CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event
11
shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in
12
cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations
13
will apply even if the above stated remedy fails of its essential purpose.”
14
15
16
42.
This provision violates clearly established legal rights of Plaintiff and the Class, and legal
responsibilities of Defendant under New Jersey law.
43.
This provision violates Plaintiff’s and the Class’s clearly established legal right to recover
17
from Defendant or a third-party for tortious conduct that causes personal injury. Likewise, this provision
18
violates Defendant’s duty to refrain from causing personal injury through its own negligent, reckless,
19
willful, malicious or wanton misconduct.
20
44.
Although the provision states that “SOME JURISDICTIONS DO NOT ALLOW THE
21
LIMITATION OF LIABILITY FOR PERSONAL INJURY…SO THIS LIMITATION MAY NOT
22
APPLY TO YOU,” it fails to state whether the limitation is inapplicable or void in New Jersey.
23
Accordingly, the Terms and Conditions violate the TCCWNA.
24
45.
The Terms and Conditions, in reference to the iTunes Store, state, “BY USING THE
25
ITUNES SERVICE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY
26
AND HOLD APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS,
27
CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING
28
OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE ITUNES SERVICE, OR
8
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ANY ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A SUSPECTED
2
VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A
3
VIOLATION OF THIS AGREEMENT HAS OCCURRED.”
4
46.
The Terms and Conditions, in reference to the MAC App Store, the App Store, the App
5
Store for Apple TV and the iBooks Store, state, “BY USING THE APP AND BOOK SERVICES, YOU
6
AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD APPLE, ITS
7
DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS,
8
AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR
9
BREACH OF THIS AGREEMENT, YOUR USE OF THE APP AND BOOK SERVICES, OR ANY
10
ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION
11
OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION
12
OF THIS AGREEMENT HAS OCCURRED.”
13
47.
The Terms and Conditions, in reference to the Apple Music, state, “BY USING THE
14
APPLE MUSIC SERVICE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO
15
INDEMNIFY AND HOLD APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES,
16
AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS
17
ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE APPLE MUSIC
18
SERVICE, OR ANY ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A
19
SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR
20
DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED.”
21
22
23
48.
These provisions violate clearly established legal rights of Plaintiff and the Class, and
legal responsibilities of Defendant under New Jersey Law.
49.
These provisions violate clearly established rights of Plaintiff and the Class members by
24
forcing Plaintiff and the Class to hold Defendant harmless for any claims caused by Defendant’s
25
negligence, willful or reckless misconduct. In the same way, these provisions violate clearly establish
26
legal responsibilities of Defendant by allowing Defendant to shirk its duty of reasonable care and forcing
27
Plaintiff and the Class to indemnify Defendant for violations of Defendant’s duties under the law.
28
50.
The provisions at issue violate the TCCWNA because they fail to state which of their
9
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parts are inapplicable or void in New Jersey. Although the Terms and Conditions are a standard form
2
contract, which based on information and belief, are presented to consumers in all fifty states in the same
3
exact form, the provisions at issue state that they are applicable “TO THE EXTENT PERMITTED BY
4
LAW.” As the Terms and Conditions are presented, and meant to apply, in multiple jurisdictions, if not
5
all fifty states, the language “TO THE EXTENT PERMITTED BY LAW,” does not bound and limit the
6
Terms and Conditions to comport with New Jersey law. Instead, this language is used to alert the reader
7
in a general, non-particularized fashion that the provisions are inapplicable, void and unenforceable in
8
some jurisdictions.
9
unenforceable in New Jersey, the Terms and Conditions violate the TCCWNA.
10
11
VI.
Because these provisions fail to state whether they are inapplicable, void or
CLASS ALLEGATIONS
51.
Plaintiff brings this class action on behalf of himself and all others similarly situated
12
pursuant to Rules 23(a), 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure, on behalf of all
13
New Jersey residents who created an Apple ID within the applicable statute of limitations, and/or who,
14
after having created an Apple ID, were asked by Defendant to agree to the Terms and Conditions at any
15
time within the applicable statute of limitations.
16
52.
Excluded from the Class are Defendant and its officers, directors and employees, the
17
Court, the Court’s immediate family and all Court staff, and Plaintiff’s attorneys and their immediate
18
family members.
19
53.
Numerosity: The class described above is so numerous that joinder of all individual
20
members in one action would be impracticable. On information of belief, hundreds, if not thousands of
21
individuals have created an Apple ID and/or agreed to the Terms and Conditions. The disposition of the
22
individual claims of the respective class members through this class action will benefit both the parties
23
and this Court, and will facilitate judicial economy.
24
54.
Ascertainability: The class is ascertainable because, on information and belief, Defendant
25
keeps and collects the information of each class member in a detailed electronic database, and records
26
when class members create an Apple ID and/or agree to the Terms and Conditions.
27
28
55.
Typicality: Plaintiff’s claims are typical of the claims of the members of the class. The
claims of the Plaintiff and members of the class are based on the same legal theories and arise from the
10
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same unlawful conduct. The claims of Plaintiff and the Class arise from the same provisions which
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uniformly are displayed in the Terms and Conditions. As such, the claims of Plaintiff and the Class rise
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and fall together and are typical of one another.
4
56.
Common Questions of Fact and Law Predominate: There are numerous question of law
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or fact common to all class members. For example, whether the provisions at issue violate clearly
6
established law is a question common to all class members, and this question is susceptible to a common
7
answer. Similarly, whether the Terms and Conditions is a consumer contract is a question common to all
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class members, and this question is susceptible to a common answer. These questions and others like
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them predominate over individual issues. The same evidence needed to prove Plaintiff’s individual
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claims will be used to prove the claims of all class members.
57.
Adequacy of Representation: Plaintiff is an adequate representative of the class because
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his interests do not conflict with the interests of the members of the class.
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adequately, and vigorously represent and protect the interests of the members of the class and has no
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interests antagonistic to the members of the class. Plaintiff has retained counsel who are competent and
15
experienced in the prosecution of complex consumer class action litigation.
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58.
Plaintiff will fairly,
Superiority: The injury sustained by each Class member, while meaningful on an
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individual basis, is not of such magnitude that it is economically feasible to prosecute individual actions
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against Defendant. Even if it were economically feasible, requiring myriad injured plaintiffs to file
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individual suits would impose a crushing burden on the court system and almost certainly lead to
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inconsistent judgments. By contrast, class treatment will present far fewer management difficulties and
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provide the benefits of a single adjudication, economies of scale, and comprehensive supervision by a
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single court.
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59.
Class certification also is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because
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Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate
25
both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole.
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VII.
CAUSES OF ACTION
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CAUSE OF ACTION
Violation of Truth-in-Consumer Contract, Warranty and Notice Act
N.J.S.A. 56:12-14, et seq.
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4
60.
The allegations contained in the previous paragraphs are incorporated by reference.
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61.
Defendant is a “seller” under the TCCWNA. N.J.S.A. 56:12-15.
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62.
Plaintiff is a “consumer” under the TCCWNA. Id.
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63.
The Terms and Conditions are a “consumer contract” under the TCCWNA because they
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are a written agreement which governs the purchase and/or license of real or personal property and
9
services for cash or credit, and the property and services obtained are for personal, family, or household
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12
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purposes. N.J.S.A. 56:12-1.
64.
The Terms and Conditions violate the TCCWNA because they include provisions that
violate clearly established legal rights and responsibilities. N.J.S.A. 56:12-15.
65.
The Terms and Conditions contain provisions, as detailed above, that purport to disclaim
14
liability for harm caused 1) by Defendant’s negligence, 2) by Defendant’s acts that violate the CFA, and
15
3) by Defendant’s malicious, willful or wanton misconduct. The Terms and Conditions also contain
16
provisions that preclude claims for punitive damages. Id.
17
66.
Further, the Terms and Conditions contain provisions, as detailed above, that state in a
18
general non-particularized fashion that some provisions are inapplicable or void in some jurisdictions
19
without stating which provisions are inapplicable or void in New Jersey. N.J.S.A. 56:12-16.
20
67.
Pursuant to N.J.S.A. 56:12-17, Plaintiff and the Class are entitled to a civil penalty of not
21
less than $100.00, or for actual damages, or both, together with reasonable attorney’s fees and court
22
costs, and any additional relief the court deems appropriate.
23
VIII. PRAYER FOR RELIEF
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68.
Wherefore, Plaintiff, on behalf of himself and on behalf of the other members of the
Class, requests that this Court award relief against Defendant as follows:
a.
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A declaratory judgment that the Terms and Conditions are in violation of N.J.S.A.
56:12-15 and 56:12-16;
b.
Injunctive relief requiring the removal from the Terms and Conditions the
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language declared in violation of N.J.S.A. 56:12-15 and 56:12-16;
2
c.
3
An Order certifying the class proposed by Plaintiff, and naming Plaintiff as class
representative and appointing his counsel as class counsel;
4
d.
5
Payment of at least $100, actual damages, or both, to Plaintiff and each class
member;
6
e.
Payment of reasonable attorneys’ fees and court costs; and
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f.
The provision of whatever other relief the Court deems just, equitable and
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9
10
appropriate.
VIII. DEMAND FOR JURY TRIAL
69.
Plaintiff hereby demands a jury trial for all of the claims so triable.
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CARLSON LYNCH SWEET KILPELA &
CARPENTER, LLP
Dated: April 28, 2016
2
/s/ Todd D. Carpenter
Todd D. Carpenter (CA 234464)
Brittany C. Casola (CA 306561)
402 West Broadway, 29th Floor
San Diego, California 92101
Telephone: (619) 347-3517
Facsimile: (619) 756-6990
tcarpenter@carlsonlynch.com
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Joseph J. DePalma
LITE DEPALMA GREENBERG LLC
570 Broad Street, Suite 1201
Newark, NJ 07102
Telephone: (973) 623-3000
Facsimile: (973) 623-0858
jdepalma@litedepalma.com
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Katrina Carroll
Kyle A. Shamberg
LITE DEPALMA GREENBERG LLC
211 W. Wacker Drive, Suite 500
Chicago, IL 60606
Telephone: (312) 750-1265
Facsimile: (312) 212-5919
kcarroll@litedepalma.com
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R. Bruce Carlson
Gary F. Lynch
Kevin Abramowicz
CARLSON LYNCH SWEET KILPELA &
CARPENTER, LLP
1133 Penn Avenue, 5th Floor
Pittsburgh, Pennsylvania 15222
Telephone: (412) 322-9243
Facsimile: (412) 231-0246
bcarlson@carlsonlynch.com
glynch@carlsonlynch.com
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Attorneys for Plaintiff
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COMPLAINT