Kyle Irving V Apple, AT&T Mobility

Case 0:09-cv-02613-PAM-FLN Document 1 Filed 09/24/09 Page 1 of 22
UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA
KYLE IRVING, individually and on

behalf of all others similarly situated,
Plaintiff, Case No. ____________________
v.
COMPLAINT
APPLE, INC., and AT&T MOBILITY,
LLC, CLASS ACTION
Defendants. JURY TRIAL DEMANDED
INTRODUCTION
Plaintiff Kyle Irving, individually and on behalf of all others similarly
situated and on behalf of the general public complains against Defendant
Apple, Inc., and AT&T Mobility, LLC, individually and through any affiliates,
parents, subsidiaries, divisions, departments, or agents as follows:
1. This is a class action brought by Plaintiff, on behalf of himself
and others similarly-situated, for breach of contract, damages, restitution,
and for violations of Minnesota’s consumer protection statutes. Plaintiff seek
remedies for themselves and the Class (defined below) for the wholesale
failure to provide Multimedia Messaging Services (“MMS”), as Defendants
promised, to purchasers of the iPhone and users of its version 3.0 or higher
software.
THE PARTIES
2. Plaintiff Kyle Irving is a Minnesota resident who purchased an
iPhone 3GS running software version 3.0 on or about June 22, 2009, with the
understanding that the MMS feature would soon be available as advertised.
The MMS feature has never worked on his iPhone 3GS.
3. Defendant Apple, Inc. (“Apple”) is a California corporation with
its principal place of business in Cupertino, California. Apple is a citizen of
California.
4. Defendant AT&T Mobility, L.L.C. (“AT&T”) is a Delaware limited
liability corporation with its principal place of business in Atlanta, Georgia.
AT&T is a citizen of Georgia and Delaware.
5. Apple is one of the largest computer manufacturers in the world.
6. AT&T is one of the largest mobile phone companies in the world.
7. Both Defendants are Fortune 500 companies, with annual sales
in the billions of dollars.
JURISDICTION AND VENUE
8. Both Apple and AT&T do systematic, continuous business in the
District of Minnesota.
9. Defendants’ breach of contract and deceptive conduct, in
connection with the sale of 3G iPhones, occurred and had material impact in
Minnesota.
2
10. Both Apple and AT&T have sufficient minimum contacts to
establish in personam jurisdiction over them in Minnesota. Under the Due
Process Clause of the Constitution, AT&T and Apple have sufficient
minimum contacts to establish in personam jurisdiction over them in
Minnesota.
11. This lawsuit relates to the Defendants’ employment of deception
and concealment in connection with the sale and advertisement of
merchandise to Plaintiff, relating to the sale of 3G and 3G-S iPhones
purchased from Apple Stores and AT&T Stores. This lawsuit is based in part
upon violations of Minnesota’s consumer protection statutes: Minnesota’s
False Statement in Advertising Act, Minn. Stat. § 325F.67, et seq.,
Minnesota’s Prevention of Consumer Fraud Act, § 325F.69, et seq.,
Minnesota’s Unlawful Trade Practices Act, § 325D.13, et seq., and
Minnesota’s Uniform Deceptive Trade Practices Act, § 325D.44, et seq.
12. This Court has jurisdiction pursuant to the Class Action Fairness
Act of 2005 (“CAFA”), 28 U.S.C. 1332(d). Plaintiff seeks to prosecution this
class action on a nationwide basis, satisfying CAFA’s diversity requirement.
28 U.S.C. § 1332(d)(2)(A). Millions of people across the U.S. have purchased
an iPhone 3GS since its launch date in June 2009. Plaintiff also asserts
entitlement to attorneys fees under Minnesota Statutes, section 8.31,
subdivision 3a. Therefore, by a preponderance of the evidence, the matter in
3
controversy exceeds $5,000,000.00. Id. at § 1332(d)(2). In addition, Plaintiff
and millions of putative class members from around the U.S. are citizens of
states other than California, the home state of Apple, or Georgia, the home
state of AT&T Mobility, satisfying CAFA’s minimal diversity requirement.
28 U.S.C. § 1332(d)(2)(A).
FACTS
Apple’s iPhone and AT&T’s MMS capabilities
13. In January 2007, Apple launched the iPhone. The iPhone was
manufactured and created by Defendant Apple. The iPhone is a combination
of an iPod (which stores thousands of music files and plays them back for the
listener) and a cellular phone (which allows users to talk on the telephone
while mobile) with an incredible amount of creative functionality. The cell
phone portion of the iPhone works exclusively, in the U.S., with the AT&T
cellular phone network. Defendants Apple and AT&T launched the iPhone
as a joint venture. Both AT&T and Apple sold the iPhone in their respective
stores.
14. The original version of the iPhone was called the “2G.” The next
generation, launched in July 2008, was called the “3G.” The most recent
version, launched in June 2009, is called the “3G-S.”
15. Since its creation, one drawback of the original 2G iPhone was
that it did not allow “Multimedia Messaging Service,” or “MMS,” which,
4
among other things, allows users to send a picture to another user’s cell
phone.
16. Apple advertised heavily that the new version of iPhone, the 3G,
as well as the even newer version, the 3G-S, would allow MMS. Apple’s print
and video advertisements on television, the Internet, the radio, newspapers,
and direct mailers all touted the availability of MMS.
17. Similarly, AT&T advertised that the 3G and 3G-S would allow
MMS. MMS functionality was one of the reasons people chose to buy or
upgrade to a 3G or 3G-S.
18. MMS has been available on other types of cell phones for many
years.
19. Apple’s website states:
Send MMS
Take a photo or shoot some video, then send it via Messages. You can
also send audio recordings from within Messages, information from
Contacts, and directions from Maps.
20. A Pop-Up window on Apple’s website reads:
Sending Photos and Videos

You can take a photo or make a video (iPhone 3GS only) from within
Messages and include it in your conversation with another MMS-
capable device.
21. AT&T’s website states:
Messages
5
Use messages to send text, photos, audio, video, and more. Forward a
whole message or just the important parts.
22. After the 3G iPhone came out in July 2008, customers who
purchased the 3G iPhone began to realize that MMS was not available.
23. In response, AT&T published this in the AT&T Answer Center
page of their website for problems related to MMS:
Customers who are sent a MMS message and own a non-MMS capable
device will receive a text message instead of an actual MMS message.
The message will contain the website address of
www.viewmymessage.com/1 or www.viewmymessage.com/2 as well as a
user name and password. To view the MMS message, please access the
website from a computer and enter the user name and password
provided in the text message.
24. Incredibly, AT&T was directing customers interested in MMS to
go to a computer to view the message.
25. The AT&T Answer Center has this unhelpful solution for the
problem “Send, Receive, or Delete a Picture, Audio, or Video Multi-Media
Message (MMS) with iPhone”:
Goal: Send, Receive, or Delete a Picture, Audio or Video Multi-media

Message with iPhone
Symptom: Unable to Send, Receive, or Delete a Picture, Audio, or Video

Multimedia Message with iPhone
Fix: iPhone does not support sending, or receiving picture, audio, or

video multimedia messages. If an MMS is sent to the iPhone, it will
receive a text message instead that contains a link to a website address
where the message can be viewed.
6
26. In early 2009, sales representatives for both Apple and AT&T
represented that MMS would be available on both the 3G and the 3G-S
beginning on June 17, 2009, when the new iPhone OS 3.0 Software Update
would become available. Representatives in Apple and AT&T stores assured
customers that with this new application, which could be downloaded for free,
MMS would be available.
27. In the spring of 2009, AT&T began a huge sales drive to sell its
older 3G models in preparation for the launch of 3G-S. AT&T lowered the
price of a 3G to less than $100 and assured customers that the new 3.0
Software Upgrade would solve all their problems.
28. Apple posted on its website, on the “iPhone OS 3.0 Software
Update” page, that MMS would be available, so that customers could “send
MMS messages and include photos, audio, and contact info. Even tap to snap
a picture right inside Messages.” A graphic showed the familiar iPhone test
message bubbles with a picture inserted.
29. Millions of customers, as a result of the false and deceptive
representations and concealments of Apple and AT&T purchased the 3G and
3G-S, waiting for June 2009, when the new application would be available
that would allow MMS.
7
30. Unfortunately, after downloading the new 3.0 Software Update
application or having had it done for them by AT&T, users found that MMS
still did not work on either the 3G or 3G-S.
31. The Apple troubleshooting page explained the problem:
To send and receive MMS messages on your iPhone 3G, do the
following:
1. Verify that your iPhone and wireless carrier meet the system
requirements. To use MMS you need:
-- iPhone OS 3.0 installed on iPhone 3G. The original iPhone
does not support sending or receiving MMS messages. Install
iPhone OS 3.0 if necessary.
-- A wireless carrier that supports MMS.
-- A coverage area in which you can place and receive a call, and
access the Internet using Safari on your iPhone (3G network
coverage recommended).
2. If this article shows that your carrier supports MMS, you should see
MMS Messaging in the Settings>Messages>General screen as shown
below.
32. The “this article” phrase was a blue-colored hyperlink. Clicking
on that hyperlink leads to a page showing several countries. Clicking on
North America, and viewing the graph for USA, under the heading “AT&T” it
8
shows that AT&T is NOT a carrier which offers MMS. Of course, AT&T is
the ONLY carrier in the United States used by the iPhone.
33. In other words, AT&T’s towers do not support MMS for iPhone.
In an article in the St. Louis Countian, AT&T spokesman Marty Richter
admitted that AT&T does not support MMS for the iPhone.
34. Calling Apple Customer Support reveals that AT&T has never
upgraded its towers so as to support the functionality necessary for MMS on
iPhone. Therefore, the iPhone cannot offer MMS as claimed.
35. The only excuse offered by AT&T and Apple is a mouseprint
disclaimer on the website, in barely readable font, which reads “MMS
Support from AT&T coming in late summer.”
36. None of the materials in either the Apple or AT&T stores advise
consumers that the MMS functionality of the phones will only work after the
AT&T towers are upgraded to support MMS in “late summer.”
37. When and if AT&T upgrades its towers, millions of iPhone
purchasers will get what they should have in terms of MMS capability. In
the meantime, all the millions of purchasers of the 3G and the 3G-S iPhone
have been deceived by the Defendants as to the phone, which in fact does not
currently have MMS functionality.
9
38. Apple and AT&T representatives continue to misrepresent or
conceal, suppress, or omit material facts to customers in their stores about
the MMS functionality of the 3G and 3G-S iPhones.
Plaintiff’s Experience
39. Kyle Irving (“Irving”), a resident of Rosemount, Minnesota,
bought his iPhone on June 22, 2009 at the AT&T Store located in Apple
Valley, Minnesota.
40. Irving was interested in a phone with MMS functionality.
41. Irving asked the store representative if the iPhone provided
MMS.
42. The store representative misrepresented and/or concealed,
suppressed, or omitted facts as to the iPhone and MMS functionality.
43. Irving purchased the 3GS iPhone.
44. When the 3.0 Software Upgrade became available, Irving
downloaded it.
45. Despite the download, MMS still did not work.
46. Between July 2009 and September 2009, Irving called Apple
Customer Service and AT&T Customer Service on several different occasions
inquiring about the MMS and its availability. Irving was told that AT&T had
not upgraded its towers and may not do so until some time in the late
summer of 2009.
10
47. Irving has been damaged in that for many months he has been
unable to send MMS messages.
CLASS ALLEGATIONS
48. Plaintiff sues in his own behalf and on behalf of a class of persons
under Rules 23(a), (b)(2), (b)(3), and (c)(4) of the Federal Rules of Civil
Procedure as the Court may determine to be applicable and appropriate, in
connection with the proceedings to certify this action and its common
questions as a class action. This action satisfies the numerosity,
commonality, typicality, adequacy, predominance and superiority
requirements of those provisions.
49. The Class is defined as:
All persons in the United States who, between July 2008 and the
date of final judgment or settlement, have purchased a 3G or 3G-
S iPhone from either AT&T Mobility L.L.C. or Apple, Inc., for
personal, family, or household use.
50. Alternatively, should it be found that any of Plaintiffs’ state law
claims could not be certified on a national basis, Plaintiffs seek statewide
subclasses (or groups of statewide subclasses) for these same persons.
51. Numerosity: Plaintiff does not know the exact size of the
proposed Class and Subclass, or the identities of all their members because
such information is in the exclusive control of Defendants. However, the
members of the class are so numerous that joinder is impracticable based on
11
the millions of iPhones sold, combined with the fact that the terms and
conditions of iPhone and AT&T services appear on standardized contracts
provided to millions of consumers.
52. Commonality/Predominance: All members of the Class have
been subjected to and affected by the same conduct. There are questions of
law and fact that are common to the Class, and predominate over any
questions affecting only individual members of the Class. These questions
include, but are not limited to:
a. whether Defendants made misrepresentations regarding MMS
functionality;
b. whether Defendants omitted material information regarding
MMS functionality;
c. whether Defendants made blatantly false statements regarding
MMS functionality;
d. whether Defendants’ marketing efforts and materials emphasized
MMS functionality without making any mention of the
unavailability of MMS;
e. whether Defendants intended for consumers to rely on their
statements regarding MMS functionality;
f. whether microprint caveats on a web-page cured Defendants’
deceptive conduct;
12
g. how much money Defendants collected for messaging services
without providing MMS functionality as promised and as billed
for;
h. how much money Defendants collected in iPhone sales;
i. whether Defendants knew that AT&T had not upgraded its
towers to support MMS for iPhone, and, if so, when did they gain
this knowledge;
j. whether Defendants concealed from consumers that: (1) AT&T
had not upgraded its towers to support MMS for iPhone and had
no plans to do so for many months; and (2) the 3.0 Software
Upgrade would not fix the problem and make MMS available (by
itself);
k. whether Apple and AT&T trained their salespersons to provide
deceptive or non-deceptive messages to consumers regarding the
fact that AT&T towers do not support MMS for iPhone, or any
advice as to when the towers will support MMS;
l. whether, according to Apple’s and AT&T’s marketing research,
MMS functionality is an important decision driver for residential
consumers when buying iPhones;
13
m. whether any employees, officers or agents of AT&T or Apple
believe that the advertisements to customers relating to MMS
were misleading to consumers;
n. whether AT&T or Apple received complaints from consumers
about the lack of MMS functionality, and what their response
was;
o. what did Defendants tell their own managers and employees
internally about MMS functionality; and
p. were any committees or work groups created to solve the MMS
problem, and what was said in their meetings;
53. Typicality: The claims of the named Plaintiff are typical of the
claims of the Class and do not conflict with the interests of other members of
the Class in that Plaintiff suffered damages as a result of paying for a phone
that did not function as promised and paying for services not rendered.
Prosecution of Plaintiff’s claims will inure to the benefit of the entire
proposed class.
54. Adequacy: The named Plaintiff will fairly and adequately
represent the interests of the Class. Plaintiff is committed to the vigorous
prosecution of the Class’s claims and has retained attorneys who are
qualified to pursue this litigation and have experience in class actions.
14
Neither Plaintiff nor counsel have any interest adverse to those of Class
members.
55. Superiority: A class action is superior to other methods for the
fast and efficient adjudication of this controversy. A class action regarding
the issues in this case does not create any problems of manageability. Among
other things, class action treatment will permit a large number of similarly
situated persons to prosecute their common claims in a single forum
simultaneously, efficiently, and without the unnecessary duplication of
evidence, effort, and expense that numerous individual actions would
engender. The benefits of proceeding through the class mechanism, including
providing injured persons or entities with a method for obtaining redress for
claims that might not be practicable to pursue individually, substantially
outweigh any difficulties that may arise in management of this class action.
56. No attorney would have the financial resources to litigate this
case against opposition from the Defendants when the potential for recovery
is so small for each class member. Therefore, joinder of all similarly situated
plaintiffs is not appropriate and the Court should employ the class
mechanism to resolve these claims.
57. In the alternative, Defendant has acted or refused to act on
grounds generally applicable to the Classes, thereby making appropriate
15
final injunctive relief or corresponding declaratory relief with respect to the
class as a whole.
COUNT I
Breach of Contract
58. Plaintiff incorporates by reference the allegations contained in
preceding paragraphs of this Complaint.
59. Defendants and Plaintiff had a valid contract, supported by
sufficient consideration, pursuant to which, for a fee, Defendants were to
supply an iPhone as represented with MMS functionality.
60. Defendants materially breached the contract by providing an
iPhone without MMS functionality.
61. As a direct result of Defendants’ material breach of the contract,
Plaintiff was damaged.
62. Plaintiffs incorporate by reference the allegations contained in
63. Minn. Stat. § 325F.69, subdivision 1 (2008) provides:
The act, use, or employment by any person of any fraud, false

pretense, false promise, misrepresentation, misleading statement
or deceptive practice, with the intent that others rely thereon in
connection with the sale of any merchandise, whether or not any
person has in fact been misled, deceived, or damaged thereby, is
enjoinable as provided in section 325F.70.
16
Material omissions stand as violations of Minnesota’s consumer protection
statutes. Plaintiff and class members need not affirmatively establish
subjective reliance upon an omission.
64. Defendants sold smart phones and messaging services, which
both fall within the meaning of “merchandise” under Minn. Stat. § 325F.68,
subd. 2.
65. On or about June 22, 2009, Plaintiff went to the ATT Store in
Apple Valley, Minnesota and purchased an iPhone. In connection with the
sale, the representative of Defendant ATT told Plaintiff that the iPhone
would soon have MMS functionality. Defendants also advertised on their
website and at their stores that MMS worked with iPhone. On their websites
and in their stores, Defendants provided visual demonstrations showing how
to use MMS on the iPhone, and showing that it in fact worked.
66. Defendants intended that consumers rely on their statements
and omissions regarding MMS functionality. But Defendants’ statements
were blatantly false and Defendants omitted the material fact that AT&T
was completely incapable of providing MMS services for iPhone. Any
disclosure allegedly provided to consumers was not a reasonable one.
67. As a direct, proximate and foreseeable result of Defendants’
conduct, Plaintiffs and class members sustained damages and are also
17
entitled to injunctive and equitable relief and an award of attorneys’ fees
pursuant to Minn. Stat. § 8.31, subd. 3a.
68. Causation is established in a consumer fraud action where an
omission is deemed material, an objective standard. Defendants’ omissions
in this case were material because Defendants’ marketing materials (and the
use of micro-print disclaimers in hard-to-find places) widely touted the
iPhone’s MMS functionality. Defendants also displayed videos in their U.S.
stores promising and demonstrating MMS functionality—even though no
U.S. consumer would have MMS functionality if they purchased iPhone.
Causation is also presumed where an affirmative statement is materially and
blatantly false on its face.
COUNT VI
Violations of the Minnesota Unlawful Trade Practices Act,
Minn. Stat. § 325D.13
70. Minnesota Statutes § 325D.13 provides: “No person shall, in
connection with the sale of merchandise, knowingly misrepresent, directly or
indirectly, the true quality, ingredients or origin of such merchandise.”
Consumer protection laws of other states make similar conduct unlawful.
18
71. Defendants misrepresented (i.e., by omission) the true quality of
their goods and services, as explained above, constituting unlawful trade
practices in violation of Minn. Stat. § 325D.13.
72. As a direct, proximate and foreseeable result of Defendants’
conduct in violation of Minnesota’s Unlawful Trade Practices Act, Minn. Stat.
§ 325D.13, Plaintiffs and class members sustained damages, and are also
entitled to injunctive and equitable relief and an award of attorneys’ fees
pursuant to Minn. Stat. § 8.31, subd. 3a.
COUNT VII
Violations of the Minnesota Uniform Deceptive Trade Practices Act,
Minn. Stat. § 325D.44
74. Minnesota Statutes § 325D.44, subd. 1 provides:
A person engages in a deceptive trade practice when, in the

course of business, vocation, or occupation, the person:
***
(5) represents that goods or services have . . . characteristics,
ingredients, uses, benefits . . . that they do not have;
***
(7) represents that goods or services are of a particular standard,
quality, or grade, . . . if they are of another . . .;
***
(9) advertises goods or services with the intent not to sell them
as advertised;
***
(13) engages in any other conduct which similarly creates a
likelihood of confusion or of misunderstanding.
19
75. Defendants misrepresented (by affirmative misrepresentation
and omission) the true quality and nature of their iPhone and messaging
services, as explained above, in violation of Minn. Stat. § 325D.44, and
Plaintiffs are thus entitled to injunctive relief. In addition, as a direct,
proximate and foreseeable result of Defendants’ conduct in violation of Minn.
Stat. § 325D.44, Plaintiffs and class members are entitled damages, and an
award of attorneys’ fees pursuant to Minn. Stat. § 8.31, subd. 3a.
76. Because Defendants willfully engaged in such trade practices
knowing them to be deceptive, Plaintiffs and the proposed Class are entitled
to recover their costs and attorneys’ fees under Minn. Stat. § 325D.45,
subd. 2.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff requests that the Court grant the following

relief:
a. An Order certifying this case as a class action pursuant to Fed. R.
Civ. P. 23(b)(2), (b)(3) and/or (c)(4), and appointing Plaintiff as
Class representative and his undersigned counsel as Class
counsel;
b. An order of restitution in favor of Plaintiff and the Class;
c. An injunction prohibiting Defendants and their successors,

agents, representatives, employees, and all persons who act in
concert with any of them, from making untrue or misleading
statements as described in this Complaint;
e. An accounting;
20
f. Pursuant to Minn. Stat. § 8.31, subd. 3a, and the Court’s inherent
equitable power, an order requiring Defendants to pay reasonable
attorneys’ fees, costs and disbursements;
g. All other relief allowed at equity or law;
h. All other relief the Court deems just and proper under the
circumstances of this case.
JURY TRIAL DEMANDED
Plaintiff hereby demands a trial by jury.
ZIMMERMAN REED, PLLP
Dated: September 24, 2009 s/David M. Cialkowski

David M. Cialkowski
(MN Bar No. 306526)
ZIMMERMAN REED, P.L.L.P.
651 Nicollet Mall, Suite 501
Minneapolis, MN 55402
Telephone: (612) 341-0400
Facsimile: (612) 341-0844
Timothy A. Engelmeyer
(MO Bar No. 39941)
Anthony M. Pezzani (MO Bar No. 52900)
ENGELMEYER & PEZZANI, LLC
13321 N. Outer Forty Road, Suite 300
Chesterfield, MO 63017
Telephone: (636) 532-9933
Facsimile: (314) 863-7793
21
Ronnie G. Penton
LAW OFFICES OF RONNIE G.
PENTON
208 Hoppen Place
Bogalusa, LA 70427
Telephone: (985) 732-5680
Facsimile: (985) 732-5579
Attorneys for Plaintiff and the Class
22

Kyle Irving V Apple, AT&T Mobility

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Case 0:09-cv-02613-PAM-FLN Document 1 Filed 09/24/09 Page 1 of 22

UNITED STATES DISTRICT COURT

KYLE IRVING, individually and on

Plaintiff, Case No. ____________________

Defendants. JURY TRIAL DEMANDED

Plaintiff Kyle Irving, individually and on behalf of all others similarly

situated and on behalf of the general public complains against Defendant

parents, subsidiaries, divisions, departments, or agents as follows:

1. This is a class action brought by Plaintiff, on behalf of himself

and others similarly-situated, for breach of contract, damages, restitution,

and for violations of Minnesota’s consumer protection statutes. Plaintiff seek

failure to provide Multimedia Messaging Services (“MMS”), as Defendants

2. Plaintiff Kyle Irving is a Minnesota resident who purchased an

understanding that the MMS feature would soon be available as advertised.

The MMS feature has never worked on his iPhone 3GS.

3. Defendant Apple, Inc. (“Apple”) is a California corporation with

its principal place of business in Cupertino, California. Apple is a citizen of

4. Defendant AT&T Mobility, L.L.C. (“AT&T”) is a Delaware limited

liability corporation with its principal place of business in Atlanta, Georgia.

AT&T is a citizen of Georgia and Delaware.

5. Apple is one of the largest computer manufacturers in the world.

6. AT&T is one of the largest mobile phone companies in the world.

7. Both Defendants are Fortune 500 companies, with annual sales

in the billions of dollars.

JURISDICTION AND VENUE

8. Both Apple and AT&T do systematic, continuous business in the

9. Defendants’ breach of contract and deceptive conduct, in

10. Both Apple and AT&T have sufficient minimum contacts to

establish in personam jurisdiction over them in Minnesota. Under the Due

Process Clause of the Constitution, AT&T and Apple have sufficient

minimum contacts to establish in personam jurisdiction over them in

11. This lawsuit relates to the Defendants’ employment of deception

and concealment in connection with the sale and advertisement of

merchandise to Plaintiff, relating to the sale of 3G and 3G-S iPhones

upon violations of Minnesota’s consumer protection statutes: Minnesota’s

False Statement in Advertising Act, Minn. Stat. § 325F.67, et seq.,

Minnesota’s Prevention of Consumer Fraud Act, § 325F.69, et seq.,

Minnesota’s Unlawful Trade Practices Act, § 325D.13, et seq., and

Minnesota’s Uniform Deceptive Trade Practices Act, § 325D.44, et seq.

Act of 2005 (“CAFA”), 28 U.S.C. 1332(d). Plaintiff seeks to prosecution this

class action on a nationwide basis, satisfying CAFA’s diversity requirement.

28 U.S.C. § 1332(d)(2)(A). Millions of people across the U.S. have purchased

entitlement to attorneys fees under Minnesota Statutes, section 8.31,

subdivision 3a. Therefore, by a preponderance of the evidence, the matter in

controversy exceeds $5,000,000.00. Id. at § 1332(d)(2). In addition, Plaintiff

state of AT&T Mobility, satisfying CAFA’s minimal diversity requirement.

Apple’s iPhone and AT&T’s MMS capabilities

manufactured and created by Defendant Apple. The iPhone is a combination

while mobile) with an incredible amount of creative functionality. The cell

version, launched in June 2009, is called the “3G-S.”

that it did not allow “Multimedia Messaging Service,” or “MMS,” which,

and video advertisements on television, the Internet, the radio, newspapers,

and direct mailers all touted the availability of MMS.

19. Apple’s website states:

20. A Pop-Up window on Apple’s website reads:

Sending Photos and Videos

21. AT&T’s website states:

23. In response, AT&T published this in the AT&T Answer Center

page of their website for problems related to MMS:

24. Incredibly, AT&T was directing customers interested in MMS to

go to a computer to view the message.

problem “Send, Receive, or Delete a Picture, Audio, or Video Multi-Media