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ROTHKEN, SBN 160029 1 ROTHKEN LAW FIRM 2 3 Hamilton Landing, Ste 280 Novato, CA 94949 3 Telephone: (415) 924-4250 Facsimile: (415) 924-2905 4 firstname.lastname@example.org 5 SETH R. LESSER (Pro Hac Vice Pending) 6 KLAFTER OLSEN & LESSER LLP Two International Drive, Suite 350 7 Rye Brook, NY 10573 Telephone: 914-934-9200 8 Facsimile: 914-934-9220 email@example.com 9 10 Attorneys for Plaintiff STEVE TIETZE 11 12 13
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA San Jose Division Case No:
14 STEVE TIETZE, on Behalf of Himself 15 and for the Benefit of All with the 16 Persons Injured, and All Others 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT
CLASS ACTION NATIONWIDE CLASS ACTION AND Similarly Situated, REPRESENTATIVE ACTION Plaintiff, COMPLAINT FOR (1) UNFAIR COMPETITION (BUSINESS & vs. PROFESSIONS CODE §17200); (2) FALSE AND MISLEADING APPLE, INC., a California Corporation. ADVERTISING (BUSINESS & PROFESSIONS CODE §17500); (3) Defendant. BREACH OF WARRANTY; (4) BREACH OF SONG-BEVERLY CONSUMER WARRANTY ACT (CALIFORNIA); AND (5) VIOLATION OF THE CONSUMER LEGAL REMEDIES ACT, , CALIFORNIA CIVIL CODE SECTION §§1750 ET SEQ. Common or General Interest, Any DEMAND FOR JURY TRIAL
Plaintiff STEVE TIETZE (“TIETZE” or “Plaintiff,”) brings this action
2 against APPLE, INC. (“APPLE” or “Defendant”), on behalf of himself, all others 3 similarly situated and the general public, and alleges upon information and belief, 4 except as to his own actions, the investigation of his counsel and the facts that are a 5 matter of public record, as follows: 6 I. OVERVIEW 7
This is a class action brought by Plaintiff on behalf of a class (the
8 “Class”) of all consumers who purchased the Defendant’s iPhone 4 phone 9 (“iPhone4”). As alleged more fully below, Defendant misrepresented and 10 concealed material information in the marketing, advertising, sale and servicing of 11 its iPhone4 particularly as it relates to the quality of the mobile phone antenna and 12 reception and related software. The iPhone4s were marketed, advertised and sold 13 as high quality smartphone products designed to meet consumer and business 14 requirements and during the relevant period were among the most expensive 15 consumer mobile phones sold. The iPhone4s were sold as powerful, full-featured 16 mobile phones with a high quality redesigned case and antennae, high quality voice 17 communications over the AT&T mobile network, wireless email, text messaging, 18 web browsing and hundreds of applications available for download. The mobile 19 phone case and antenna design is defective. The case and antenna design has led to 20 a substantial degradation in signal quality and dropped calls when the phone is 21 used in a normal and foreseeable fashion by users. Related “mobile reception” 22 software provides users with a misleading manifestation of the quality of the 23 mobile signal it its display of the number of “bars” and fails to optimize the 24 antenna reception. 25
At all pertinent times Defendant represented to the public, including
26 Class members, that the iPhone 4 was a dependable and reliable mobile device; 27 28 CLASS ACTION COMPLAINT -2-
1 that they were free from defects; and that they were of merchantable quality and 2 workmanship. 3
In fact, the iPhone4 suffered from an extremely defective antenna
4 system built in to the body of the phone where it was subject to substantial 5 interference and degradation of the wireless signal when held in a normal manner 6 and held in a manner reasonably expected by users of such device. Defendant 7 failed to ensure a dependable mobile antenna system was in place. 8
Furthermore, Plaintiff is informed and believes that Defendant has
9 been aware for a substantial period of time that the iPhone4 was prone to 10 unreasonably poor reception, antenna design defects, and dropped calls. 11 Nevertheless, Defendant failed to warn its customers of the problem or tried to 12 prevent them from suffering poor reception. Defendant’s main response to date is 13 to buy a $29.95 dollar case. Defendant has failed to effectively remedy the 14 problems and defects inherent in the iPhone4. Unwilling to admit fault, Defendant 15 sat silently while consumers purchased these defective products without warning 16 customers about the risks inherent in purchasing and relying upon a iPhone4 as a 17 mobile telephone communication device. 18
In addition to the reception problems with the antenna and case design
19 Defendants designed their smartphone antenna related software in a materially 20 defective manner including, but not limited to, inaccurately manifesting the 21 number of bars or quality of the reception of the iphone4 devices and not 22 optimizing the antenna signal quality. Defendants knew or should have known of 23 the material defects in their antenna related software design and taken steps to 24 advise potential purchasers of the defects and taken steps to fix such software 25 before the iphone4 was placed into the marketplace for purchase or at least in a 26 more expedient fashion. 27 28 CLASS ACTION COMPLAINT -3-
As a result of Defendant’s false and misleading statements and
2 concealment, Plaintiff and the Class bought thousands of iPhone4s and were 3 unable to use these devices as advertised and have not had any practical means of 4 effective repair or redesign and in essence, based on the defective design, obtained 5 a smartphone that is worth less than what they were purchasing. The iPhone4 6 failures and defects continue to occur. 7
Plaintiff asserts claims under California Business and Professions
8 Code §§17200 and 17500, et seq., for breach of the Song-Beverly Consumer 9 Warranty Act (“Song-Beverly Act”), for breach of warranty pursuant to 10 Commercial Code §2313 and pursuant to the Consumer Legal Remedies Act 11 (“CLRA”), California Civil Code §1750. 12
Plaintiff seeks actual and/or compensatory damages; restitution;
13 equitable relief, including the replacement and/or recall of the defective iPhone4; 14 costs and expenses of litigation, including attorneys’ fees; and all additional and 15 further relief that may be available. Plaintiff reserves the right to amend his 16 Complaint to add additional relief as permitted under the CLRA or other applicable 17 law. 18 II. THE PARTIES 19
Plaintiff TIETZE, is a citizen of the State of California and the United
20 States of America, who maintains a residence in Marin County, California, first 21 purchased a iPhone4 on June 24, 2010. Shortly after purchase, TIETZE noticed 22 that he had problems with reception, dropped calls and inconsistent ability to make 23 use of his iPhone4. 24
Defendant, APPLE, INC. (“APPLE”) is a California corporation with
25 its executive offices and principal place of business and corporate headquarters in 26 Cupertino, California. 27 28 CLASS ACTION COMPLAINT -4-
1 III. 2
JURISDICTION AND VENUE 11. This case is subject to original jurisdiction in this court pursuant to the
3 Class Action Fairness Act of 2005. Pub. L. No. 109-2, 119 Stat. 4 (codified in 4 scattered section of 28 U.S.C.)(“CAFA”) because at least one member of the 5 proposed class has a different citizenship from a defendant and the total matter in 6 controversy exceeds $5,000,000 Thus, this court has subject matter jurisdiction 7 over this action pursuant to 28 U.S.C. §1332. Venue is proper in the Northern 8 District of California pursuant to 28 U.S.C. §1391 because this District is the 9 district in which defendant APPLE is located and a District in which a substantial 10 part of the events or omissions giving rise to the claim occurred. Plaintiffs are 11 informed, believe, and thereon allege that defendant APPLE’s employees and/or 12 agents responsible for the advertising, marketing and/or promotional literature, 13 including the product packaging for the subject products are located in this judicial 14 district and/or the decisions concerning the design, manufacture, marketing and 15 advertising emanated from, or were authorized and/or approved by Defendant’s 16 corporate officers, executives and employees located in this judicial district 17
INTRADISTRICT ASSIGNMENT - Pursuant to Civil Local Rule
18 3-2(e), this case shall be assigned to the San Jose Division as it arises from Santa 19 Clara County. 20 IV. 21
CLASS ACTION ALLEGATIONS 13. Plaintiff brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and
22 Fed. R. Civ. P. 23(b)(3) on behalf of himself and the following Nationwide Class: 23 24 25 26 27 28 CLASS ACTION COMPLAINT -5-
All persons or entities within the United States who purchased an Apple iPhone 4 since June 7, 2010. Excluded from this Class are Apple, Inc. and their affiliates, employees or agents, or persons or entities who distribute or sell the Apple iPhone 4. 14. The members of the Class are so numerous that joinder of all members would be impracticable. Plaintiff estimates that there are more than 1.7
1 million purchasers of the iPhone4 who have suffered unreasonably poor reception 2 and dropped calls. FRCP 23(a)(1). 3
There are questions of law and fact common to the members of the
4 Class that predominate over any questions affecting only individual members 5 (FRCP 23(a)(3)), including as it relates to the iphone4 antenna, case design, and 6 related software: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT -6-
! Whether the iPhone4 reception fails at unacceptably high rates, are inherently defective and are not of merchantable quality. ! Whether Defendant made false and/or misleading statements of fact to the Class and the public concerning the defects inherent in the iPhone4. ! Whether Defendant knew, or were reckless in not knowing, that their statements about the performance, quality, and reliability of the iPhone4were false and/or misleading. ! Whether Defendant concealed from Plaintiff, the Class and the public that the iPhone4s fail or degrade at unacceptably high rates, are inherently defective and are not of merchantable quality. ! Whether Defendant has undertaken a common business practice of producing and selling to the public iPhone4s that fail to have reasonable antenna reception and related “reception” software, as Defendant advertised and otherwise represented. ! Whether the iPhone4s fail to conform to Apple’s product specifications, which were published and advertised to Plaintiffs, the Class and the public. ! Whether Defendant concealed from Plaintiffs, the Class and the public that the iPhone4s do not conform to Apple’s product specification.
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
! Whether Defendant’s false and/or misleading statements of fact and their concealment of material fact regarding the performance and reliability of iPhone4 were likely to deceive the public. ! Whether, by the misconduct set forth in this Complaint, Defendant has engaged in unfair or unlawful business practices with respect to the advertising, marketing and sale of the iPhone4. ! Whether, by the misconduct as set forth herein, Defendant has engaged in unfair, deceptive, untrue or misleading advertising of the iPhone4. ! Whether Defendant breached the implied covenant of good faith and fair dealing with Plaintiff, the class, and the public. ! Whether Defendant was unjustly enriched by its conduct. ! Whether Defendant has breached its warranties to Plaintiff and the Class. ! Whether, as a result of Defendant’s misconduct, Plaintiff and the Class are entitled to damages, restitution, equitable relief, punitive damages, and/or other damages and relief, and, if so, the amount and nature of such relief. ! whether Defendant’s conduct violates Cal. Bus. & Prof. Code § 17200; ! whether Defendant’s conduct violates Cal. Bus. & Prof. Code § 17500; ! whether Defendant’s breached the warranties alleged; ! whether Defendant’s conduct constitutes negligence; ! whether Defendant’s conduct violates California’s Consumer Legal Remedies Act; ! whether Defendant concealed and did not disclose the defects in the iPhone4 reception capabilities; 16. Plaintiff’s claims are typical of the claims of the members of the
26 Class. Plaintiff has no interests antagonistic to those of the Class and are subject to 27 no unique defenses. FRCP 23(a)(3) 28 CLASS ACTION COMPLAINT -7-
Plaintiff will fairly and adequately protect the interests of the Class
2 and has retained attorneys experienced in class and complex litigation. There are 3 no material conflicts between Plaintiff’s claims and those of absent Class members 4 that would make class certification inappropriate. Counsel for Plaintiff is 5 experienced in complex class action litigation and will vigorously assert Plaintiff’s 6 claims and those of the members of the Class in conformance with FCRP 23(a)(4). 7
Pursuant to FRCP 23(b)(3), a class action is superior to other available
8 methods for the fair and efficient adjudication of this controversy for the following 9 reasons: 10 11 12 13 14 15 16 17 18 19 20 21
! ! ! ! ! ! 19.
It is economically impractical for each member of the Class to prosecute individual actions. The Class is readily definable. Prosecution as a class action will eliminate the possibility of repetitious litigation. A class action will enable claims to be handled in an orderly and expeditious manner. A class action will save time and expense and will ensure uniformity of decisions. Plaintiff does not anticipate any difficulty in the management of this litigation as a class action. Santa Clara County, California, as the site of APPLE’s headquarters
22 and the place where all significant decision-making occurred with respect to the 23 iPhone4 design and production, is the center of gravity for this action such that it is 24 appropriate and consistent with existing law to certify the class of consumers 25 proposed in the Complaint to be litigated in this District. 26 27 28 CLASS ACTION COMPLAINT -8-
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16
V. CALIFORNIA C.C.P. §382 COMMON OR GENERAL INTEREST ALLEGATIONS 20. In addition to asserting class action claims in this action, Plaintiff also asserts non-class action claims on behalf of the common or general interest to sue for the benefit of all in cases where the parties are numerous, and it is impracticable to bring them all before the court pursuant to C.C.P. §382. The purpose of such claims is to require Defendant to disgorge and restore all monies wrongfully obtained by Defendant through their false advertising and unfair business practices. A common or general interest action is necessary and appropriate because Defendant has engaged and continues to engage in the wrongful acts and false advertising described herein as a general business practice. A case may be brought under C.C.P. §382 without a class being certified or where class certification is denied as long as the case involves a question of the common or general interest. To the extent to which this court finds that it has no jurisdiction over non-class common or general interest claims pursuant to C.C.P. §382, such claims should be dismissed without prejudice for refilling in state court. DEFENDANT’S FALSE STATEMENTS TO THE PUBLIC AND PLAINTIFF’S ACTUAL EXPERIENCE 21. The purported advantage of an iPhone4 is that the new antenna design
17 VI. 18 19 20 21 22 23 24 25 26 27 28
improved call quality and reception, and made no reference to the necessity of holding the phone in any particular position or to spend more money on a case to mitigate reception problems. 22. 23. 24. Defendant represented that one can have an effective and powerful Defendant represented and advertised the iPhone4 as being an Defendant has consistently misrepresented the quality and reliability mobile communication device with multiple functions and applications. exceptionally powerful and useful mobile device. of the iPhone4 reception capability and related software.
CLASS ACTION COMPLAINT -9-
The harm caused by Defendant’s false and misleading statements and Defendant is and has been aware of the scope of the problems with the
2 omissions grossly outweigh any benefit that could be attributed to them. 3
4 iPhone4 but has failed to take substantial corrective action. Defendant has taken 5 only minimal action in response to consumer complaints including for example 6 advising users to hold the phone differently to purchase a case. 7
Plaintiff’s actual experience with the iPhone4 has been consistently
8 poor reception and dropped calls, large fluctuations in the manifestation of “bars” 9 related to signal quality, and related excessive heat production and short battery 10 life. 11 12 13
NON-WAIVABILITY OF THE PROTECTIONS PROVIDED BY CALIFORNIA LAW Under a number of California consumer statutes and equitable
14 provisions the consumer product protections of California law are unwaivable by 15 the use of any shrink-wrap warranty limitations. For example, the Song-Beverly 16 Act states expressly: 17 18 19
Any waiver by the buyer of consumer goods of the provisions of this chapter, except as expressly provided in this chapter, shall be deemed contrary to public policy and shall be unenforceable and void. Any waiver by a consumer of the provisions of this title is contrary to public policy and shall be unenforceable and void. 29. Unless notice is provided to the Class, and a recall instituted, most
20 Similarly, the CLRA §1751 states expressly: 21 22 23
24 other users of the iPhone4 will eventually suffer the same fate, at considerable cost, 25 expense and loss as Plaintiff has suffered and continue to suffer to date. 26 27 28 CLASS ACTION COMPLAINT - 10 -
1 VIII. 2 3 4
CAUSES OF ACTION A. First Cause of Action for Violation of Bus. & Prof. Code §17200 by Plaintiff Individually, as a Class Action and on Behalf of the Common or General Interest 30. 31. Plaintiff realleges and incorporates the above allegations by reference Plaintiff brings this cause of action on behalf of himself, on behalf of
5 as if set forth fully herein. 6
7 the Class and on behalf of the common or general interest. Plaintiff has suffered 8 injury in fact and lost money or property as a result of such unfair competition. 9
Defendant has engaged in unfair, unlawful and fraudulent business By engaging in the above-described acts and practices, Defendant has
10 practices as set forth above. 11
12 committed one or more acts of unfair competition within the meaning of Bus. & 13 Prof. Code §17200, et seq. 14
Defendant’s acts and practices have and/or are likely to deceive Defendant’s acts and practices are unlawful because they violate Civ.
15 members of the consuming public. 16
17 Code §§1572, 1709, 1710, 1770(a)(5), 1770(a)(7) and 1770(a)(9). Defendant’s 18 acts and practices are also unlawful because they violate Bus. & Prof. Code 19 §17500, et seq. Specifically, Defendant marketed and sold the iPhone4 in a 20 defective condition and deceptively failed to disclose their defects as described 21 above. Said marketing and sales, including said omissions, were material and 22 substantial. Defendant’s acts and practices are also unlawful because they violate 23 the Song-Beverly Act, Civ. Code §1790, et seq. 24
Plaintiff, on behalf of himself, on behalf of the Class and on behalf of
25 the common or general interest, seek an order of this Court awarding restitution, 26 disgorgement, injunctive relief and all other relief allowed under §17200, et seq., 27 plus interest, attorneys’ fees and costs pursuant to, inter alia, C.C.P. §1021.5. 28 CLASS ACTION COMPLAINT - 11 -
Plaintiff meets the standing requirements of C.C.P. §382 to bring this
2 cause of action because, among other reasons, the question is one of a common or 3 general interest, is a question of many persons and/or the parties are numerous and 4 it is impracticable to bring them all before the Court. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT - 12 -
Second Cause of Action for Violation of Bus. & Prof. Code §17500 by Plaintiff Individually, as a Class Action and on Behalf of the Common or General Interest Plaintiff realleges and incorporates the above allegations by reference Plaintiff brings this cause of action on behalf of himself, on behalf of
as if set forth fully herein. the Class and on behalf of the common or general interest. Plaintiff has suffered injury in fact and have lost money or property as a result of Defendant’s violation of Bus. & Prof. Code §17500, et seq. 40. Beginning on or before June 7, 2010, Defendant engaged in advertising and marketing to the public and offered the iPhone4 for sale throughout the United States, including California. 41. 42. Defendant has engaged in the advertising and marketing alleged Defendant’s advertisements and marketing representations regarding herein with an intent to directly or indirectly induce the purchase of the iPhone4. the technical and other characteristics of the iPhone4 are false, misleading and deceptive as set forth more fully above. 43. At the time Defendant made and disseminated the statements alleged herein, it knew or should have known that the statements were untrue or misleading, and acted in violation of Bus. & Prof. Code §17500, et seq. 44. Defendant actively concealed its knowledge that the iPhone4 contained inherent defects.
Plaintiff has been harmed. Plaintiff, on behalf of himself, on behalf of
2 the Class and on behalf of the common or general interest, seeks restitution, 3 disgorgement, injunctive relief and all other relief allowable under §17500, et seq. 4
Plaintiff meets the standing requirements of C.C.P. 382 to bring this
5 cause of action because, among other reasons, the question is one of a common or 6 general interest, is a question of many persons and/or the parties are numerous and 7 it is impracticable to bring them all before the Court. 8 9 10 11
Third Cause of Action for Breach of Express Warranty by Plaintiffs Individually and on Behalf of all Others Similarly Situated Plaintiff realleges and incorporate the above allegations by reference Under the explicit terms of Defendant’s warranty, each iPhone4 came Defendant’s written warranty stated that each iPhone4 was free of
47. 48. 49.
12 as if set forth fully herein at length. 13
14 with an express warranty. 15
16 defects in materials and workmanship and conformed to Defendant’s product 17 specifications. 18
Defendant breached their express warranties, as set forth above, by
19 supplying the iPhone4 in condition where they do not perform the most basic and 20 essential function of a hand-held phone. 21
Defendant has received, upon information and belief, hundreds of
22 complaints and other notices from its customers world-wide advising Defendant of 23 the defects in the iPhone4, including many from California residents and residents 24 of the United States. Despite this notice and Defendant’s knowledge, Defendant 25 continues to sell and/or replace defective iPhone4s with similarly defective 26 iPhone4s. 27 28 CLASS ACTION COMPLAINT - 13 -
Applying any warranty limitation to avoid the need to repair this
2 particular defect would be unconscionable in that, inter alia, the iPhone4 contain 3 an inherent defect that was already present at the time of purchase and Defendant 4 knew or was reckless in not knowing about this defect, which could not be 5 discovered by Plaintiffs and members of the Class at the time of purchase, and 6 purchasers lacked any meaningful choice with respect to the warranty terms. 7
As a result of Defendant’s breach of express warranty, Plaintiffs and
8 the Class have suffered damages in an amount to be determined at trial. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT - 14 -
Fourth Cause of Action for Breach of the Song-Beverly Act by Plaintiff Individually and on Behalf of all Others Similarly Situated Plaintiff realleges and incorporate the above allegations by reference Plaintiff asserts the third Cause of Action individually, on behalf of
as if set forth fully herein. the Class and on behalf of the common or general interest for breach of implied warranty under the Song-Beverly Act, Civ. Code §1790, et seq. 56. §1791(a). 57. 58. 59. Defendant’s implied warranty of merchantability arose out of and/or As set forth more fully above, Defendant has failed to comply with its Plaintiff and the Class have suffered and will continue to suffer were related to the sales of the iPhone4. obligations under its implied warranty of merchantability. damages as a result of Defendant’s failure to comply with its warranty obligations. Accordingly, Plaintiff and the Class are entitled to recover such damages under the Song-Beverly Act, including damages pursuant to Civ. Code §§1791.1(d) and 1974. The iPhone4s are “consumer goods” within the meaning of Civ. Code
Defendant’s breaches of warranty, as set forth above, were willful.
2 Accordingly, a civil penalty should be imposed upon Defendant in an amount not 3 to exceed twice the amount of actual damages. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT - 15 -
Fifth Cause of Action for Violation of the CLRA by Plaintiff Individually, on Behalf of the Common or General Interest Pursuant to the Standing Provisions of C.C.P. §382 and as a Class Action on Behalf of all Others Similarly Situated. Plaintiff realleges and incorporates the above allegations by reference Plaintiff brings this claim individually and on behalf of the Class Defendant has engaged in deceptive practices, unlawful methods of
61. 62. 63.
as if set forth fully herein. against Defendant. competition and/or unfair acts as defined by Civ. Code §1750, et seq. to the detriment of Plaintiff, members of general public and the Class. Plaintiff, the general public and members of the Class have suffered harm as a proximate result of the violations of law and wrongful conduct of Defendant alleged herein. 64. Defendant intentionally, knowingly and unlawfully perpetrated harm upon Plaintiff by the above described facts. To wit, Defendant’s actions in selling defective products and failing to remedy these defects have violated the following provisions of the CLRA: (a) Civil Code §1770(a)(5): Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities which they do not have. (b) Civil Code §1770(a)(7): Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another. (c) Civil Code §1770(a)(9): Advertising goods or services with intent not to sell them as advertised.
Civil Code §1770(a)(14): Representing that a transaction
2 confers or involves rights, remedies or obligations which it does not have or 3 involve, or which are prohibited. 4
Civil Code §1770(a)(19): Inserting an unconscionable provision
5 in the contract. 6
Defendant’s policies and practices are unlawful, unethical, oppressive,
7 fraudulent and malicious. The gravity of the harm to all consumers and to the 8 general public from Defendant’s policies and practices far outweighs any 9 purported utility those policies and practices have. 10
Pursuant to Civ. Code §1780(a), Plaintiff seeks an order enjoining Pursuant to Civ. Code §1782, if Defendant do not rectify its illegal (a) (b) (c) (d) (e) actual damages; restitution of money to Plaintiff, the general public and Class punitive damages; attorneys’ fees and costs; and other relief that this Court deems proper.
11 Defendant from engaging in the methods, acts or practices alleged herein. 12
13 acts within 30 days, Plaintiff intend to amend this Complaint to add claims for: 14 15 16 members; 17 18 19 20 21
IX. 68. ! !
Prayer for relief Wherefore, Plaintiff, on behalf of himself, all others similarly situated An order certifying this case as a class action and appointing Plaintiff and its counsel to represent the Class. An injunction against Defendant selling, directly or indirectly, defective iPhone4 and/or other equitable relief according to proof.
22 and the general public, pray for judgment against Defendant as follows: 23 24 25 26 27 28 CLASS ACTION COMPLAINT - 16 -
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 /// 24 /// 25 /// 26 /// 27 28
Restitution and disgorgement of all amounts obtained by Defendant as a result of its misconduct, together with interest thereon from the date of payment, to the victims of such violations.
! ! ! ! !
Actual damages for injuries suffered by Plaintiff and the Class. Compensatory money damages according to proof. Punitive damages. Attorneys’ fees and costs. An order requiring Defendant to immediately cease its wrongful conduct as set forth above; enjoining Defendant from continuing to falsely market and advertise, conceal material information and conduct business via the unlawful and unfair business acts and practices complained of herein; ordering Defendant to engage in a corrective notice campaign; and requiring Defendant to implement a full replacement or repair program of all defective iPhone4s at issue or, in the alternative, to refund to Plaintiff and all members of the Class the funds paid to Defendant for the defective iPhone4s; and requiring Defendant to pay for reasonable attorneys’ fees and costs of prosecuting this action.
For statutory prejudgment interest. For such other relief as this Court may deem just and proper.
CLASS ACTION COMPLAINT
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1 2 3
X. JURY DEMAND Plaintiff demand a trial by jury. ROTHKEN LAW FIRM _____________________________ Ira P. Rothken, Esq., (State Bar #160029) Attorney for Plaintiff STEVE TIETZE ROTHKEN LAW FIRM 3 Hamilton Landing, Ste 280 Novato, CA 94949 Telephone: (415) 924-4250 Facsimile: (415) 924-2905 firstname.lastname@example.org
4 DATED: July 2, 2010 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT
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CERTIFICATION PURSUANT TO CIVIL L.R. 3-16 Pursuant to Civil L.R. 3-16, the undersigned certifies that the following
3 listed persons, associations of persons, firms, partnerships, corporations (including 4 parent corporations) or other entities (i) have a financial interest in the subject 5 matter in controversy or in a party to the proceeding, or (ii) have a non-financial 6 interest in that subject matter or in a party that could be substantially affected by 7 the outcome of this proceeding: 8 9 10 11 Dated: July 2, 2010 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT - 19 -
APPLE, INC., a California Corporation, and AT&T, INC., a Delaware Corporation ROTHKEN LAW FIRM ______________________________ Ira P. Rothken, Esq., (State Bar #160029) Attorney for Plaintiff STEVE TIETZE ROTHKEN LAW FIRM 3 Hamilton Landing, Ste 280 Novato, CA 94949 Telephone: (415) 924-4250 Facsimile: (415) 924-2905 email@example.com
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