apple i case - amended complaint

8/3/2019 Apple I Case - Amended Complaint

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2011 Aaron Mayer

UNITED STATES DISTRICT COURTMIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

VIKRAM AJJAMPUR,WILLIAM DEVITO, andCLAUS MEYER, onbehalf of themselves andall others similarly situated,

Plaintiffs,

v. CASE NO.:

APPLE, INC.,

Class Action

Defendant,

/

AMENDED CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL

(Injunctive Relief and Damages Sought)

Plaintiffs Vikram Ajjampur, William Devito, and Claus Meyer, on behalf of

themselves and others similarly situated, hereby bring this action against Defendant Apple,

Inc., and allege as follows:

INTRODUCTION

1. This action asserts consumers rights not to have their locations tracked,stored, and communicated to Apple. Customers buying Apple s newest gadgets want a

product; they are not signing up to volunteer for free as mules for Apple s efforts to build its

iAds individual location marketing database, which it uses to generate many billions of extra

revenue dollars. Apple iPhones and 3G iPads are secretly recording and storing details of

Case 8:11-cv-00895-RAL-TBM Document 4 Filed 05/09/11 Page 1 of 46 PageID 36


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all their owners movements, reported the British Broadcasting Company.1 According to

security experts Alasdair Allan and Pete Warden, the location data is hidden from users but

unencrypted, making it easy for Apple or third parties to later access it.2

Apple Inc. s

collection of this information is clearly intentional. 3 Indeed, Apple has told congress that

it collects individual user location data.4

2. An Apple webpage apparently targeting an audience of programmers is titledGetting the User s Location, in which Apple provides a technical description of how to

get location data by using the classes of the Core Location framework.

This framework provides several services that you can use to get andmonitor the device s current location:

The significant-change location service provides a low-power way toget the current location and be notified of changes to that location.(iOS 4.0 and later).

The standard location service offers a more configurable way to getthe current location.

Region monitoring lets you monitor boundary crossings for a definedarea.5

3. Apple collects information about users location data automatically, in somecases, to update and maintain databases with known location information. Apples Letterat

1iPhone Tracks Users Movements, April 20, 2011. Available at http://www.bbc.co.uk/news/technology-13145562 (last visited April 22, 2011).2 Id.3Got an iPhone or 3G iPad? Apple is Recording Your Moves, by Alasdair Allen and Pete Warden, onradar.oreilly.com. Available at http://radar.oreilly.com/2011/04/apple-location-tracking.html (last visited April22, 2011) (hereafterRecording Your Moves).4Apple Inc.s Response to Request for Information Regarding Its Privacy Policy and Location-Based Services,letter from Apple s general counsel Bruce Sewell to U.S. Representatives Edward Markey and Joe Barton. July12, 2010 (hereafterApples Letter), p. 6-9, 12. Available at http://markey.house.gov/docs/applemarkeybarton7-12-10.pdf.5 Available at http://developer.apple.com/library/ios/#documentation/UserExperience/Conceptual/LocationAwarenessPG/CoreLocation/CoreLocation.html#//apple_ref/doc/uid/TP40009497-CH2-SW1 (last visited4/28/2011).



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6. A user s [l]ocation is available to anyone with certain commercially available

software, says Apple. Id. at 6.

4. The affected devices are the iPhone 3G, iPhone 3GS, iPhone 4, iPod touchall of which are capable of running iOS 4 and the iPad 3G and iPad Wi-Fi, and in addition,

to a more limited extent, some older models of the iPhone, the iPad Wi-Fi, and iPod touch

(collectively, the Devices ). Apple s Letterat 4, 5. Apple has insinuated its tracking

software onto older Devices through software updates that it recommends to users.

5. Users of Apple products have no way to prevent Apple from collecting theirindividual location data because even if users disable a Device s global positioning system

(GPS) components, Apple s tracking system remains fully functional.6 Further, while a

Device s location services are toggled to off, the Device simply stores the user s

location information for later transmittal to Apple when the location services are toggled

back to on. 7 Location services, which are on by default, are required for full-

functioning of the Devices. Thus, Apple s location tracking is never off; rather, it can

merely be postponed temporarily.

PARTIES

6. Plaintiff Vikram Ajjampur is a resident of Hillsborough County, Florida, whoat all relevant times has owned an iPhone and carried it with him everywhere.

7. Plaintiff William Devito is a resident of New York state, who at all relevanttimes has owned a 3G iPad and has traveled with it extensively.

6Apple Q&A on Location Data , April 27, 2011, http://www.apple.com/pr/library/2011/04/27location_qa.html.7IPhone Stored Location in Test Even if Disabled, by Jennifer Valentino-Devries, Wall Street Journal (WSJ),April 25, 2011; see alsoHouse Presses Apple, Google, Others on Location-Tracking Practices, by YukariIwatani Kane, WSJ, April 26, 2011.



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8. Plaintiff Claus Meyer is a resident of Bremen, Germany, who at all relevanttimes has owned, used and traveled extensively with an iPhone.

9. Defendant Apple, Inc. is a California corporation with its principal place ofbusiness in California.

JURISDICTION AND VENUE

10. This Court has jurisdiction over this action under 28 U.S.C. 1332(d)(2). Theamount in controversy between the Class as defined herein and the Defendant exceeds

$5,000,000, exclusive of interest and costs. The Class as defined herein consists of

individuals from fifty different states and countries around the globe. Greater than two-thirds

of the Class members reside outside of California the state in which Apple is a citizen.

11. Additionally, this Court has federal question jurisdiction under 28 U.S.C. 1331 based on the federal civil causes of action provided in: 18 U.S.C. 1030(g); 18 U.S.C.

2520; 47 U.S.C. 605(e)(3)(A); 18 U.S.C. 2707; and 47 U.S.C. 207.

12. Venue is proper in this Court pursuant to 28 U.S.C. 1391 in that PlaintiffVikram Ajjampur is a resident of this district, many of the acts and transactions giving rise to

this action occurred in this district, and because Apple:

a. is authorized to conduct business in this district and has availed itselfof the laws and markets within this district through the promotion,

marketing, distribution and sale of its products in this district;

b. does substantial business in this district; andc. is subject to personal jurisdiction in this district.



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APPLES PRIVACY VIOLATIONS

13. Apple s Devices log, record and store users locations based on latitude andlongitude alongside a timestamp. Recording Your Moves. Apple does this both

domestically in the United States and internationally. The Devices store this information in

a file called consolidated.db or something similar. Id. Apple intentionally began

recording this information with the release of its iOS 4 operating system in June 2010, 8 to

accrue a marketing database worth billions of dollars.

14. Apple uses a cell-tower triangulation to obtain user location. Recording YourMoves. Alternatively, Apple may use wireless hotspots or GPS data to obtain user location:

Apple automatically collects Wi-Fi Access Point Information and GPScoordinates when a device is searching for a cellular network, such aswhen the device is first turned on or trying to re-establish a droppedconnection. The device searches for nearby Wi-Fi access points forapproximately thirty seconds . This information and the GPScoordinates are stored (or batched ) on the device and added to theinformation sent to Apple.

Apple Letterat 7, fn. 8.

15. Apple Devices download the user location data to the user s computer whenthe mobile Device synchronizes ( syncs ) or shares data with the computer. The data is

unencrypted on the mobile Devices and also on users computers that sync with those

mobile Devices.

16. Users of Apple s Devices, including Plaintiffs, were unaware of Apple slogging, recording and storing the latitude and longitude of their locations, alongside a

8iPhone Keeps Recording of Everywhere You Go, by Charles Arthur of the London newspaper Guardian,Available at http://www.guardian.co.uk/technology/2011/apr/20/iphone-tracking-prompts-privacy-fears (lastvisited April 22, 2011).



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timestamp, and did not consent to such tracking.

17. Apple s Terms and Conditions 9 do not disclose its comprehensive trackingof users. Plaintiffs and other users did not provide any sort of informed consent to the

tracking at issue in this case.

18. Apple collects the location information covertly, surreptitiously and inviolations of law.

19. Apple tracks users locations on its own, separate, apart and in addition to theinformation it collects in conjunction with other businesses that develop applications for

Apple s Devices. This action is not about the applications collection of information on

users; rather, it is specifically in objection to Apple s own collection of user location

information.

20. Apple s Devices are carried with users to essentially every location theytravel to, making the information collected by Apple highly personal. Apple s creation and

collection of such data violates people s rights which they do not relinquish to Apple

through the ordinary purchase of a Device.

21. In addition to directly violating users rights, the accessibility of theunencrypted information collected by Apple places users at serious risk of privacy invasions

and crimes. Even Apple has stated that a user s [l]ocation is available to anyone with

certain commercially available software. Apple Letterat 6, 7.

22. The individual location data is, or can be, readily combined by Apple witheach device s unique device identification (UDID), to identify particular users either by

9 Available at http://www.apple.com/legal/itunes/uk/terms.html.



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name or otherwise. These UDIDs can never be changed or turned off, and are not secret,

partly because Apple regularly shares them with third parties.10 Along with the UDID and

location data, Defendants transmit other user information, including at least age, gender,

income, ethnicity, sexual orientation and political views in addition to income and parental

status. Watching You. Further sources for data include the phone s camera, memory,

contact list, and more than 100 others. Watching You. All these data sources are Sensitive

Information about users. According to the Mobile Marketing Association, an industry

trade group, In the world of mobile, there is no anonymity. Watching You. Apple

acknowledges that the UDIDs are personally identifiable information, partly due to the

ease with which they can be combined with other personal details about people such as

names or email addresses that Apple has. Id.

23. Furthermore, it is no accident that Apple s deployment of its location dataand Sensitive Information tracking and storing coincided with the company s deployment of

iAds Apple s entry into the race to build massive databases capable of pinpointing

people s locations via their cellphones. 11

24. Apple has a strong incentive to violate users privacy. Databases such as theone Apple is assembling could help them tap the $2.9 billion market for location-based

services expected to rise to $8.3 billion in 2014, according to research firm Gartner Inc. 12

Our iAds advertising system can use location as a factor in targeting ads. 13 Thus, Apple

has billions of reasons annually not to allow users to disable its location services, and to

10Your Apps Are Watching You, by Scott Thurm, Yukari Iwatani Kane, WSJ, Dec. 17, 2010 (Watching You).11Apple, Google Collect User Data, by Julia Angwin and Jennifer Valentino-Devries, WSJ, April 22, 2011.12 Id. Angwin and Valentino-Devries for WSJ.13Apple Q&A on Location Data , April 27, 2011,supra.



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access users Sensitive Information.

25. Plaintiffs and proposed Class members were harmed by Apple s accrual ofpersonal location, movement, travel histories and Sensitive Information because their

personal computers were used in ways they did not approve, and because they were

personally tracked just as if by a tracking device for which, in the U.S., a court-ordered

warrant and probable cause would ordinarily be required.

26. Plaintiffs bring this action to stop Apple s illegal and intrusive scheme ofcollecting, storing and selling personal location data and Sensitive Information.

27. In the original complaint, Plaintiffs sought an injunction requiring Apple todisable individual location data tracking in its next-released operating system for the

relevant Devices. Five days after Plaintiffs filed their original complaint, which was widely

disseminated by the media, Apple responded by promising that:

Sometime in the next few weeks Apple will release a free iOSsoftware update that:

reduces the size of the crowd-sourced Wi-Fi hotspot and cell towerdatabase cached on the iPhone,

ceases backing up this cache, and deletes this cache entirely when Location Services is turned off.In the next major iOS software release the cache will also beencrypted on the iPhone.

Apple Q&A on Location Data.

28. Plaintiffs seek a court order requiring these promised changes, to the extentApple s iOS 4.3.3, released May 4, 2011 is not as advertised, and in addition, requiring

Apple to begin expressly and succinctly disclosing to prospective users that Apple intends to

accumulate their individual location data and Sensitive Information. Apple s tracking and



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storing user locations and other Sensitive Information is material and Apple is legally bound

to disclose its intentions before potential Device users consummate their Device purchases.

29. Apple s current approach of burying the relevant, though vague, privacydisclosures in the middle of a 15,166-word document that, they say, consumers are

prompted to read before they can buy music from the iTunes store for the first time, has

been proven ineffective by the surprise, shock and furor that has resulted from revelations of

the true extent of Apple s individual location data and Sensitive Information collection.

30. Apple knew or should have known that consumers would not read a 15,166-word document before clicking to allow a software update or consummating the purchase of

a song or movie. A novel is 60,000 words. It is inconceivable that Apple could believe in

good faith that someone trying to download a song would take time out to read over of a

novel. By comparison, this amended complaint is about 11,000 words; at that length it

spans forty-seven pages and requires two hours on a full-sized screen to read carefully.

Apple should know that consumers are not inclined to spend hours reading Apple s Terms

and Conditions mini-novel before consummating the purchase of a new hit song on iTunes.

31. Apple concealed its intent to gather user location data, veiled its marketingmotive albeit thinly to accumulate that data and sell billions of dollars worth of iAds,

and since the filing of the original complaint has embarked on a media strategy claiming that

its collection of user location data was the result of a bug, a mistake.14 Plaintiffs wholly

reject this latest misinformation from Apple.

32. Plaintiffs therefore seek a further injunction requiring Apple to, through a

14Apple Q&A on Location Data , April 27, 2011,supra, q. 6, 7.



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corrective media campaign, affirmatively and candidly inform the public and its millions of

Device users of the true and full extent of Apple s tracking behavior. Full page

advertisements in the major national and international newspapers would be a start.

33. Apple s acts and omissions have directly and proximately caused Plaintiffsand Class members damages and losses:

a. Exposing their location data in an unencrypted database;b. Accessing and transmitting their Sensitive Information;c. Shortening the battery life of their Devices by drawing power for

the unauthorized creation and accumulation of individual location

data through communication with cell towers, wireless hotspots

and GPS infrastructure;

d. Requiring more frequent recharges of Device batteries and theexpenses associated therewith;

e. Reducing the storage capability of their devices by covertlyallocating limited device resources to create and store a database of

individual user location information;

f. Creating longer processing times for legitimate Device usesbecause of resources drawn on by Apple s location data activities;

g. Causing an increase in data transfer expenses for users with limiteddata packages.

34. Plaintiffs seek damages for violations of their statutory and common lawrights in two classes: (1) a United States consumer class, and (2) an international consumer



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because all U.S. Class members purchased, own or use iPhones or iPads under uniform

Apple privacy policies.

39. This action involves questions of law common to all Class members because:a. The federal laws violated here are national in scope and apply to all

prospective U.S. Class members (as well as members of the

International sub-class);

b. Each state has enacted laws comparable to the Federal TradeCommission Act, known as little FTC acts, which provide private

causes of action with sufficient uniformity that Apple s standardized

practices of collecting location information violated the little FTC

acts of each state in the same way; and

c. Apple s privacy invasions have violated Plaintiffs and U.S. Classmembers other state statutory and common law rights in uniform

ways.

40. The claims of Plaintiffs Ajjampur and Devito are typical of those of othermembers of the U.S. Class as there are no material differences in the facts and law

underlying the claims of U.S. Plaintiffs and the U.S. Class and by prosecuting their claims

Plaintiffs will advance the claims of Class members.

41. The common questions of law and fact among all U.S. Class memberspredominate over any issues affecting individual members of the U.S. Class, including but

not limited to:

a. whether Apple obtained and stored Plaintiffs location information;



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b. whether Apple failed to disclose material terms in its privacy policyregarding its collection of users location information;

c. whether Apple intends to market or otherwise exploit users locationinformation;

d. whether the alleged conduct constitutes violations of the laws assertedherein;

e. whether U.S. Plaintiffs and U.S. Class members are entitled todeclaratory and injunctive relief;

f. whether U.S. Plaintiffs and U.S. Class members have sustainedmonetary loss and the proper measure of that loss;

g. whether U.S. Plaintiffs and U.S. Class members have sustainedconsequential loss, and to what measure; and

h. whether Apple s acts and omissions warrant punitive damages.42. The U.S. Plaintiffs claims are typical of the claims of the proposed U.S.

Class, and those Plaintiffs will fairly and adequately represent and protect the interests of the

proposed U.S. Class. Plaintiffs have retained counsel competent and experienced in the

prosecution of this type of litigation.

International Class

43. All Plaintiffs bring this action on behalf of themselves and proposed plaintiffInternational Class members under Rules 23(b)(2) and (3) of the Federal Rules of Civil

Procedure. The proposed International Class consists of:

All persons worldwide who purchased, owned or carried around an iPhonewith the iOS 4 operating system (which include the iPhone 3G, iPhone 3GS,



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iPhone 4, and iPod touch) or an iPad 3G or iPad Wi-Fi between the release ofthose products for sale by Apple and the present. Excluded from theInternational Class are those who purchased the products for resale.

44. While the exact number of International Class members is unknown to thePlaintiffs at this time, there are likely tens of millions of members of the proposed

International Class, as approximately half of Apple s iPhone and iPad sales occur outside

the U.S. The International Class is so numerous that joinder of all members of the

International Class is impracticable.

45. This action involves questions of fact common to all International Classmembers because all International Class members purchased, own or use iPhones or iPads

under uniform Apple privacy policies.

46. This action involves questions of law common to all International Classmembers because:

a. The Computer Fraud and Abuse Act, violated here, applies to Apple sactions against all prospective International Class members;

b. Violations all the federal laws alleged here are routinely enforcedagainst domestic U.S. defendants, such as Apple, for transgressions

against computers abroad.

47. The federal law claims of Plaintiffs are typical of those of other members ofthe International Class as there are no material differences in the facts and law underlying

the claims of Plaintiffs and the International Class and by prosecuting their claims Plaintiffs

will advance the claims of International Class members.

48. The common questions of law and fact among all International Class



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members predominate over any issues affecting individual members of the Class, including

but not limited to:

a. whether Apple obtained and stored Plaintiffs location information;b. whether Apple obtained Plaintiffs Sensitive Information;c. whether Apple failed to disclose material terms in its privacy policy

regarding its collection of users location information;

d. whether Apple has already or intends to market or otherwise exploitusers location information;

e. whether the alleged conduct constitutes violations of the federal lawsasserted herein;

f. whether Plaintiffs and International Class members are entitled todeclaratory and injunctive relief;

g. whether Plaintiffs and International Class members have sustainedmonetary loss and the proper measure of that loss;

h. whether Plaintiffs and International Class members have sustainedconsequential loss, and to what measure; and

i. whether Apple s acts and omissions warrant punitive damages.49. Plaintiffs claims are typical of the claims of the proposed International Class,

and Plaintiffs will fairly and adequately represent and protect the interests of the proposed

International Class. Plaintiffs have retained counsel competent and experienced in the

prosecution of this type of litigation.



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Both Classes: The U.S. Class, and the International Class

50. The questions of law and fact common to the Class17 members, some ofwhich are set out above, predominate over any questions affecting only individual Class

members.

51. Class treatment of the claims set forth herein is superior to other availablemethods for the fair and efficient adjudication of this controversy. The expense and burden

of individual litigation would make it impracticable or impossible for proposed Class

members to prosecute their claims individually. Absent a class action, a multiplicity of

individual lawsuits would be required to address the claims between Class members and

Apple, and inconsistent treatment and adjudication of the claims would likely result.

52. The litigation and trial of Plaintiffs claims is manageable. Apple sstandardized Terms and Conditions at issue, Apple s uniform deployment of operating

systems that track each user in identical ways, the consistent provisions of the relevant laws,

and the readily ascertainable identities of many Class members demonstrate that there would

be no significant manageability problems with prosecuting this lawsuit as a class action.

Additionally, notice can be sent directly to both Classes through a software update, or

similar, of the affected Devices.

53. Apple has acted or refused to act on grounds that apply generally to the Classso that final injunctive relief and corresponding declaratory relief are appropriate.

54. Unless a class-wide injunction is issued, Apple will continue to commit theviolations alleged, and the members of the Class will continue to be tracked, unlawfully

17 The term Class refers to both the proposed U.S. Class and the proposed International sub-class.



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Apple should be ordered to stop exploiting individual location data through iAds. Users

have not agreed to volunteer as Apple s data-gathering mules.

COUNT II(Both Classes: Computer Fraud and Abuse Act, 18 U.S.C. 1030)

66. Plaintiffs re-allege and incorporate by reference the allegations contained inthe paragraphs above, and those that come after as if fully set forth here.

67. By secretly installing software that records users every moves Apple hasaccessed Plaintiffs computers, in the course of interstate commerce, foreign commerce, or

communication, in excess of the authorization provided by Plaintiffs as described in the

Computer Fraud and Abuse Act (the Fraud Act ) 18 U.S.C. 1030(a)(2)(C).

68. Plaintiffs computers, and those of the Class, are protected computerspursuant to 18 U.S.C. 1030(e)(2)(B) because they were used in or affected interstate or

foreign commerce or communication. Plaintiffs computers were purchased in interstate or

foreign commerce and have in turn facilitated additional purchases in interstate or foreign

commerce.

69. Plaintiffs iPhones and iPads, and the Devices of the Class, are also protectedcomputers pursuant to 18 U.S.C. 1030(e)(2)(B) (stating that the term protected

computer means a computer which is used in or affecting interstate or foreign commerce

or communication, including a computer located outside the United States that is used in a

manner that affects interstate or foreign commerce or communication ).

70. By tracking individual location data, and by accessing Sensitive Information,Apple exceeded the scope of any authorized access provided by Plaintiffs. See 18 U.S.C.

1030(e)(6).



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71. Plaintiffs have suffered damages by Apple s impairment of the integrity oftheir privacy on Apple Devices, by Apple s creation of a database of Plaintiffs location

data, and by Apple s transferring that database to other computers. See 18 U.S.C.

1030(e)(8).

72. Plaintiffs have suffered losses as a direct and proximate result of Apple sacts and omissions as that term is defined by 18 U.S.C. 1030(e)(11), including the cost of

responding to Apple s offenses, conducting damage assessments, and restoring the data,

program, system, and other information to its condition prior to the offense. Plaintiffs have

also suffered consequential damages from Apple s acquisition and transmittal of their

Sensitive Information.

73. Apple further violated the Fraud Act by causing the transmission of aprogram, information, code or command in (1) deploying the iOS 4 operating systems, (2)

as a result of the syncing of user handheld devices with their laptop or desktop computers,

and (3) by transferring the database it created for each user back to Apple and as a result

caused harm aggregating at least $5,000 in value. See 18 U.S.C. 1030(c)(4)(i)(I).

74. By tracking individual user location data, and by storing it in an unencrypteddatabase, Apple s actions have threatened public safety and welfare. Collecting and storing

information pertaining to an individual s routine movements makes that individual more

susceptible to stalking and other crimes. A user s [l]ocation is available to anyone with

certain commercially available software, says Apple. Apple Letterat 6, 7. Plaintiffs risks

of such crime, and that of the proposed Class, have been increased by Apple s actions,

creating a threat to public safety. See 18 U.S.C. 1030(c)(4)(i)(IV).



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75. Plaintiffs and the Class have suffered damages, and those damages haveaffected ten or more protected computers over the past one-year period. See 18 U.S.C.

1030(c)(4)(i)(VI).

76. Plaintiffs bring this Count as a stand-alone cause of action under 18 U.S.C. 1030(g) for both Classes, and as a predicate violation for other Counts asserted in this

complaint on behalf of the U.S. Class.

77. Apple s actions were knowing or reckless and, as described above, causedharm to Plaintiffs and proposed Class members.

78. Plaintiffs seek recovery for these damages and losses, and those of the Class,as well as injunctive and declaratory relief to prevent future harm.

COUNT III

(Both Classes: Wire/Electronic Communications Interception, 18 U.S.C. 2510 et seq.)


80. Apple s programmed communication between its users Devices and celltowers, wireless hotspots, and GPS infrastructure and between users Devices and Apple s

own computers is either wire communication under 18 U.S.C. 2510(1) because wires

are required between the point of origin and the point of reception, or, is electronic

communication under 18 U.S.C. 2510(12) because data is transmitted by wire, radio,

electromagnetic, photo-electronic or photo-optical systems, or the like, that affect interstate

commerce or foreign commerce.

81. Plaintiffs and Class members are users under 18 U.S.C. 2510(13).82. Apple s communications are readily accessible to the general public under



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18 U.S.C. 2510(16), in that they are not encrypted, and are stored in unencrypted form.

Indeed, even Apple agrees that a user s [l]ocation is available to anyone with certain

commercially available software. Apples Letterat 6.

83. Apple intentionally intercepts Plaintiffs and Class members wire orelectronic communications. See 18 U.S.C. 2511(1)(a).

84. Apple intentionally discloses or endeavors to disclose its users location data,which data is content of wire or electronic communication, through iAd and otherwise. See

18 U.S.C. 2511(1)(c).

85. Apple intentionally uses, or endeavors to use, the contents of its location datatracking of its users and users Sensitive Information in violation of 18 U.S.C. 2511(1)(d).

86. Apple knows or has reason to know that the personal location datainformation it obtained from its users was obtained through the interception of a wire or

electronic communication because Apple wrote the programming code to accomplish this

result. See 18 U.S.C. 2511(1).

87. Apple has intentionally sent or carried in interstate commerce its Devices,which are electronic, mechanical or other devices and the relevant programming code. See

18 U.S.C. 2512(1)(a).

88. Although consumers employ these Devices for other uses, Apple s primaryuse for them is to harvest individual user location data to market or sell for billions of dollars

annually via Apple s iAds. Apple manufactures, assembles, possesses, and sells electronic,

mechanical or other devices, knowing or having reason to know that the design of such

Devices renders them primarily useful for the purpose of the surreptitious interception of



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wire or electronic communications.

89. These Devices have been sent through the mail or transported in interstatecommerce. See 18 U.S.C. 2512(1)(b).

90. Apple has advertised the surreptitious interception capabilities of its devicesby electronic means to third-parties interested in using the personal location information for

marketing and other purposes. Apple s iAds is an example of this. Apple has known the

content of these advertisements and known that they would be transported interstate.

91. Plaintiffs and Class members location data created and collected by Applewas intentionally used or disclosed by Apple to third parties for marketing purposes, or

Apple planned and endeavored to disclose such information, as with its iAds. See 18 U.S.C.

2520(a).

92. Plaintiffs seek injunctive and declaratory relief to stop Apple from creatingand collecting their personal location data.

93. Plaintiffs seek damages under 18 U.S.C. 2520(c)(2).94. Plaintiffs seek a reasonable attorney s fee and other litigation costs reasonably

incurred.

95. Plaintiffs bring this Count as a stand-alone cause of action under 18 U.S.C. 2520 for both Classes, and as a predicate violation for other Counts asserted in this complaint

on behalf of the U.S. Class.

COUNT IV

(Both Classes: Unlawful Access to Stored Communications, 18 U.S.C. 2701)




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97. Apple s Devices facilitate electronic communications services.98. Apple has knowingly and intentionally accessed, without authorization from

users, the Device facilities through which electronic communication services are provided.

99. Apple has knowingly and intentionally exceeded its authorization to accessusers Devices, and has thereby obtained or altered a wire or electronic communication while

it is in electronic storage on users devices and on the computers with which users sync their

devices. Apple has done this by creating, storing, and manipulating a database of Plaintiffs

location data and Sensitive Information without their authorization.

100. Plaintiffs did not authorize Apple s conduct and are persons aggrieved byApple s violations and bring this Count under 18 U.S.C. 2707.

101. Apple has recently stated that its collection of individual location data was anunintentional bug in its operating systems. If it truly was a bug, then Plaintiffs could not

have possibly authorized Apple to collect their individual location data because even Apple,

the author of its own privacy Terms and Conditions, did not envision the individual location

data tracking.

102. Plaintiffs seek an injunction to stop Apple from continuing its violations, orfrom resuming those violations in the future.

103. Apple s violations have directly and proximately damaged Plaintiffs andApple has realized significant profits as a result of its violations.

104. Plaintiffs seek damages under 18 U.S.C. 2707(c) of $1000 or greater foreach violation, where each Class member is a person aggrieved and the quantity of Apple s

violations equal the number of Class members.



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105. Plaintiffs seek reasonable attorney s fees and other litigation costs reasonablyincurred.

106. Plaintiffs bring this Count as a stand-alone cause of action under 18 U.S.C. 2701 et seq. for both Classes, and as a predicate violation for other Counts asserted in this

complaint on behalf of the U.S. Class.

COUNT V

(Both Classes: Unauthorized Publication or Use of Communications, 47 U.S.C. 605)


108. Apple, through its devices, willfully and purposefully received, assisted inreceiving, transmitted, or assisted in transmitting interstate or foreign communication by wire

or radio the individual location data it creates, stores, and shares or intended to share, or the

Sensitive Information of each Device user.

109. Apple has divulged or published the existence, contents, substance or effect ofsuch user communications through unauthorized channels, including through iAds.

110. Plaintiffs and Class members have proprietary rights in their location data thatwas intercepted by Apple.

111. Apple has collected and continues to collect Plaintiffs location data for itsown private financial gain or commercial advantage.

112. Plaintiffs are aggrieved by Apple s tracking of their location data and bringthis Count under 47 U.S.C. 605(e)(3)(A).

113. Plaintiffs seek an injunction to stop Apple s interception of their location data.114. Apple s actions against each Plaintiff and each Class member constitute



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separate violations.

115. Plaintiffs seek damages as calculated under 47 U.S.C. 605(e)(3)(C) of $1000for each violation, up to $100,000 for each violation because Apple s actions were willfully

and purposefully conducted for commercial advantage or private gain.

116. Plaintiffs seek reasonable attorney s fees and other litigation costs andexpenses.



COUNT VI

(Both Classes: Privacy of Customer Information, 47 U.S.C. 222)


119. If Apple is, because of its extensive telecommunications service activities,considered a telecommunications carrier under Title 47 of the U.S. Code, then its users are

customers and Apple has violated additional laws and regulations, including 47 U.S.C.

222.

120. Plaintiffs individual location data created and collected by Apple iscustomer proprietary network information.

121. Plaintiffs and Class members did not provide Apple with express priorauthorization for Apple s individual location tracking activities, and did not approve the use

of, disclosure of, or access to their call location information concerning their use of

commercial mobile services.



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122. Apple has a duty to protect the confidentiality of proprietary information ofand relating to customers, but has breached this duty by collecting, accessing, and sharing

individual user location data or Sensitive Information.

123. Apple s collection of this information was not part of its service to users andwas instead part of Apple s introduction of its location-based marketing application iAds.

124. Under this Count, Plaintiffs seek damages, and attorney s fees and costs. See47 U.S.C. 206, 207.



COUNT VII

(U.S. Class Only: Violations of State Computer Crimes Acts)


127. Computer means an internally programmed, automatic device that performsdata processing. Fla. Stat. 815.03(3).

128. access means to approach, instruct, communicate with, store data, retrievedata, or otherwise make use of any resources of a computer . Fla. Stat. 815.03(10).

129. Whoever willfully, knowingly, and without authorization modifiedequipment or supplies used or intended to be used in a computer commits an offense. Fla.

Stat. 815.05. This is a felony in Florida.

130. Whoever willfully, knowingly, and without authorization accesses or causesto be accessed any computer, computer system or computer network which in whole or



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part, is owned by another commits an offense against computer users. Fla. Stat. 815.06.

131. In New York, unauthorized use of a computer is a class A misdemeanor, asis computer tampering. N.Y. Penal Law 156.00 et seq.

132. Plaintiffs Devices are computers within the definitions of both Florida andNew York law.

133. Apple accessed Plaintiffs computers and Devices without authorization.This constituted unauthorized use or computer tampering under Florida and New York

law, respectively.

134. Plaintiffs and U.S. Class members were directly and proximately damaged byApple in the amounts they paid for their Devices and seek any other or additional damages

afforded under these laws.19

COUNT VIII

(U.S. Class Only: Violations of State Wiretapping Laws)


136. Apple intentionally intercepted or endeavors to intercept the wire or electroniccommunications of Plaintiff Ajjampur by surreptitiously creating, recording and transmitting

Plaintiffs individual location information.

137. Plaintiff Ajjampur s individual location data is content of wire or electroniccommunications.

138. Apple intentionally discloses or has endeavored to disclose PlaintiffAjjampur s individual location data to other parties, including through iAds, knowing or

19 The relevant laws of each state are at http://www.ncsl.org/default.aspx?tabid=13492 (last visited 5/9/2011).



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having reason to know that the information was obtained through the interception of a wire

or electronic communication in violation of Fla. Stat. 934.03.

139. Apple intentionally uses, or has endeavored to use, Plaintiff Ajjampur sindividual location data for purposes unrelated to the provision of services that Plaintiff has

authorized, and specifically for the purposes of creating a database to sell or market

Plaintiff s location to third parties so that they can market to Plaintiff.

140. Similarly, under New York law, Apple has unlawfully engaged in interceptingor accessing Plaintiff Devito s electronic communication by creating, storing or transferring

Plaintiff Devito s individual location data. See N.Y. Penal Law 250.05.

141. Apple s creation, storage or transmission of individual location data iselectronic communication under New York law because it requires the transfer of signs,

signals, writing, images, data, or intelligence of any nature, and is transmitted in whole or

part by wire, radio, electromagnetic, photo-electronic or photo-optical system. See N.Y.

Penal Law 250.00.

142. Apple s interception, disclosure, accessing or use of Plaintiffs individuallocation data has directly and proximately damaged Plaintiffs and Class members in the ways

described throughout this complaint, and Plaintiffs and Class members have suffered losses

as a result.

COUNT IX

(U.S. Class Only: Unfair or Deceptive Acts Violating Each States

Little FTC

Acts)


144. This cause of action is brought by Plaintiff Vikram Ajjampur pursuant to



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Florida s Deceptive and Unfair Trade Practices Act, and by Plaintiff William Devito

pursuant to New York s deceptive business practices laws. See Fla. Stat. 501.201; see also

N.Y. Exec. Law 63(12), N.Y. Gen. Bus. Law 349 et seq.

145. This Count is brought on behalf of U.S. Class members pursuant to eachstate s unfair or deceptive acts and practices (UDAP) statutes, i.e. the Little FTC Acts

(hereafter Acts ). The Act of each state follows the Federal Trade Commission Act and

provides for a private cause of action.

146. Consumer means an individual . Fla. Stat. 501.203(7).147. Plaintiffs and U.S. Class members are consumers as defined under these Acts.148. The FTC Act prohibits an act or practice that violates either the standards for

unfairness, or those for deception the two are independent of each other. An act or

practice may be found to be unfair where it causes or is likely to cause substantial injury to

consumers which is not reasonably avoidable by consumers themselves and not outweighed

by countervailing benefits to consumers or to competition. 15 U.S.C. 45(n). An act or

practice is deceptive if it is likely to mislead a consumer acting reasonably under the

circumstances.

149. Apple s inadequate privacy policy disclosures made in its 15,166-word Termsand Conditions were both unfair and deceptive.

150. Apple s tracking and syncing of Plaintiffs and other users personalinformation was both unfair and deceptive because Apple s users had no knowledge of

Apple s intent or actions.

151. The Acts of Florida and the other states substantially follow the FTC Act.



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152. Florida s Act defines a violation:Violation of this part means any violation of this act or the rules

adopted under this act and may be based upon any of the following

(a) Any rules promulgated pursuant to the Federal Trade CommissionAct, 15 U.S.C. ss. 41 et seq.;

(b) The standards of unfairness and deception set forth and interpretedby the Federal Trade Commission or the federal courts;

(c) Any law, statute, rule, regulation, or ordinance which proscribesunfair methods of competition, or unfair, deceptive, or unconscionable actsor practices.20

153. Apple s privacy policy contained deceptive misrepresentations that arematerial and are likely to and did deceive ordinary consumers acting reasonably, including

the Plaintiffs, into believing that their every move would (1) not be tracked by Apple, (2)

then stored for future use in an Apple-designed database, and (3) transmitted to Apple so that

(4) it could make billions of dollars in bonus revenue by selling iAds.

154. Apple s omission of its true intent to track users was material to terms andconditions under which Plaintiffs and U.S. Class members purchased their iPhones, iPads

and other Devices. An act or practice is material if it is likely to affect a consumer s decision

regarding the product. Plaintiffs and other users would not have purchased Apple products

and indeed would have purchased the products of a competitor had they known that their

every movement would be tracked and recorded.

155. Here, Apple specifically omitted from its privacy policy any indication that itsproducts would track users, knowing that such disclosure would prevent consumers from

consummating their purchases.

20 Fla. Stat. 501.203(3).



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156. Florida s Act declares the acts and omissions of Apple to be unlawful. Thestatute says:

(1) Unfair methods of competition, unconscionable acts or practices,and unfair or deceptive acts or practices in the conduct of any trade orcommerce are hereby declared unlawful.

(2) It is the intent of the Legislature that, in construing subsection (1),due consideration and great weight shall be given to the interpretations of theFederal Trade Commission and the federal courts relating to s. 5(a)(1) of theFederal Trade Commission Act, 15 U.S.C. s. 45(a)(1) as of July 1, 2006.

Fla. Stat. 501.204.

157. Apple s practices have caused substantial injury to Plaintiffs and U.S. Classmembers by depriving them of money they would have spent elsewhere and by covertly

delivering software that tracks users every movements.

158. Apple s unfair omissions injure both consumers and competition. Consumersare injured in all the ways that Plaintiffs have been injured, as described throughout this

complaint, and competition suffers in several ways too: (1) honest companies that do not

covertly track their customers locations have lost and continue to lose market share to Apple

products as already described; (2) Apple is rewarded for its deceit with billions of dollars in

revenues (which should all be disgorged); and (3) competitors behaving deceptively creates a

race to the bottom, wherein additional companies feel economic pressure to similarly track

users whereabouts to later sell and thereby avoid losing further market share in the rapidly

growing and competitive market for precise consumer demographic, location and other data.

There are no countervailing benefits of Apple s conduct: not to consumers, nor to

competition.

159. Apple violated and continues to violate the Acts of each state by engaging in



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the trade practices described above, that have caused and continues to cause substantial

injury to consumers, which are not reasonably avoidable by the consumers themselves, in

transactions with Plaintiffs and the U.S. Class which were intended to result in, and did result

in, the sale of the iPhone, iPads and other Devices.

160. There were reasonable alternatives available to further Apple s legitimatebusiness interests, other than the conduct described herein. Apple, for example, could have

abstained from tracking the exact locations of users of its products. Apple also could have

required a single sentence disclosure describing its rampant covert tracking of individual

users locations to be signed by purchasers rather than or in addition to its fifteen-thousand-

word, sixty-plus page privacy Terms and Conditions.

161. This cause of action is brought by Plaintiff William Devito pursuant to NewYork s deceptive business practices laws. See N.Y. Exec. Law 63(12), N.Y. Gen. Bus.

Law 349 et seq.

162. New York prohibits [d]eceptive acts or practices in the conduct of anybusiness, trade or commerce . N.Y. Gen. Bus. Law 349(a).

163. Apple s act of tracking its users was consumer-oriented because it preys onApple s own purchasers, as it preyed on Plaintiffs. See Stutman v. Chemical Bank, 731

N.E.2d 608, 611 (N.Y. 2000).

164. Apple s act of tracking its users is misleading in a material way becauseApple fails to disclose, or even hint at, the full extent of its user location tracking in the

Apple privacy policy terms and conditions. Apple s acts have a broad impact on consumers

at large because Apple s inadequate disclosures, coupled with its unlawful tracking, storing



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and transmitting of user location data, continue to impact prospective purchasers.

165. Plaintiffs and U.S. Class members have suffered injury as a result of Apple sdeceptive acts and omissions because Plaintiffs would not have bought Apple devices had

they known that they would be tracked.

166. Plaintiffs have suffered injury as a direct and proximate result of Apple sdeceptive acts, practices and omissions. Injury includes Plaintiffs purchases of their Apple

devices. Actual injury to Plaintiffs also includes the collection of their private location

information and the continued existence of databases of that same information databases

that are unencrypted and accessible to the public.

167. Apple willfully and knowingly violated N.Y. Gen. Bus. Law 349(a) and istherefore subject to three times the actual damages suffered by Plaintiffs and the U.S. Class.

168. Apple deceived Plaintiffs and consumers, and treated them unfairly bytracking their movements as described above, and violated the Acts of each state by omitting

from its privacy policy the full extent of its tracking:

a. Alabama s Deceptive Trade Practices Act declares deceptivepractices unlawful. Ala. Code 8-19-1 et seq.;

b. Alaska s Unfair Trade Practices and Consumer Protection Act.Alaska Stat. 44.50.471 et seq.;

c. Arizona s Consumer Fraud Act. Ariz. Rev. Stat. 44-1521 et seq.;d. Arkansas s Deceptive Trade Practices Act prohibits false, or

deceptive acts or practices in business, commerce, or trade. Ark.Code 4-88-101 et seq.;

e. California s Consumer Legal Remedies Act, and also the UnfairCompetition Law. Cal Civ. Code 1750 et seq., and Cal. Bus. &Prof. Code 17200 et seq., respectively;

f. Colorado s Consumer Protection Act. Colo. Rev. Stat. 6-1-101 et



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seq.;

g. Connecticut s Unfair Trade Practices Act. Conn. Gen. Stat. 42-110a et seq.;

h. Delaware s Consumer Fraud Act, and also its Uniform DeceptiveTrade Practices Act. Del. Code, Title 6 2511-2571, 2580-2584,and Title 6 2531-2536, respectively;

i. District of Columbia s Act. D.C. Code 28-3901 et seq.;j. Florida s Deceptive and Unfair Trade Practices Act. Fla. Stat.

501.201 et seq.;

k. Georgia s Uniform Deceptive Trade Practices Act, and also the FairBusiness Practices Act. Ga. Code 10-1-370 et seq., and 10-1-

390 et seq.;

l. Hawaii s Uniform Deceptive Trade Practices Act. Haw. Rev. Stat. 480-24 et seq., 484A-1 et seq.;

m. Idaho s Consumer Protection Act. Idaho Code 48-601 et seq.;n. Illinois s Consumer Fraud and Deceptive Business Practices Act,

and also its Uniform Deceptive Trade Practices Act. 815 Ill. Comp.Stat. 505/1 et seq., and 815 Ill. Comp. Stat. 510/1 et seq.;

o.

Indiana s Deceptive Consumer Sales Act. Ind. Code 24-5-0.5-1et seq.;

p. Iowa s Act. Iowa Code 714.16 et seq.;q. Kansas s Consumer Protection Act. Kan. Stat. 50-623 et seq., 50-

676 et seq.;

r. Louisiana s Unfair Trade Practices and Consumer Protection Law.La. Rev. Stat. 51:1401 et seq.;

s. Maine s Unfair Trade Practices Act, and also its Uniform DeceptiveTrade Practices Act. Me. Rev. Stat., Title 5 205-A et seq., andTitle 10 1211 et seq., respectively;

t. Maryland s Consumer Protection Act. Md. Code Com. Law 13-101 et seq.;

u. Massachusetts s Consumer Protection Act. Mass. Gen. Laws ch.



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93A 1 et seq.;

v. Michigan s Consumer Protection Act. Mich. Comp. Laws 445.901 et seq.;

w. Minnesota s Uniform Trade Practices Act, and its False Statement inAdvertising Act, and also its Prevention of Consumer Fraud Act.Minn. Stat. 8.31, 325D.43 et seq., and 325F.68 et seq.;

x. Mississippi s Consumer Protection Act. Miss. Code 75-24-1 etseq.;

y. Missouri s Merchandising Practices Act. Mo. Rev. Stat. 407.010et seq.;

z. Montana s Unfair Trade Practices and Consumer Protection Act.Mont. Code 30-14-101 et seq.;

aa. Nebraska s Consumer Protection Act, and also its UniformDeceptive Trade Practices Act. Neb. Rev. Stat. 59-1601 et seq.,and 87-301 et seq.;

bb. Nevada s Trade Regulation and Practices Act. Nev. Rev. Stat. 598.0903 et seq., and 41.6000;

cc. New Hampshire s Consumer Protection Act. N.H. Rev. Stat. 358-A:1 et seq.;

dd. New Jersey s Consumer Fraud Act. N.J. Stat. 56:8-1 et seq.;ee. New Mexico s Unfair Practices Act. N.M. Stat. 57-12-1 et seq.;ff. New York s Act. N.Y. Exec. Law 63(12), N.Y. Gen. Bus. Law

349 et seq.;

gg. North Carolina s Act. N.C. Gen. Stat. 75-1.1 et seq.;hh. North Dakota s Consumer Fraud Act. N.D. Cent. Code 51-15-01

et seq.;

ii. Ohio s Consumer Sales Practices Act, and also its Deceptive TradePractices Act. Ohio Rev. Code 1345.01 et seq., and 4165.01 etseq.;

jj. Oklahoma s Consumer Protection Act, and also its Deceptive TradePractices Act. Okla. Stat., Title 15 751 et seq., Title 78 51 et



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seq., respectively;

kk. Oregon s Unlawful Trade Practices Law. Or. Rev. Stat. 646.605et seq.;

ll. Pennsylvania s Unfair Trade Practices and Consumer ProtectionLaw. 73 Pa. Stat. 201-1 et seq.;

mm. Rhode Island s Unfair Trade Practices and Consumer Protection Act.R.I. Gen Laws 6-13.1-1 et seq.;

nn. South Carolina s Unfair Trade Practices Act. S.C. Code 39-5-10et seq.;

oo. South Dakota s Deceptive Trade Practices and Consumer ProtectionLaw. S.D. Cod. Laws 37-24-1 et seq.;

pp. Tennessee s Consumer Protection Act. Tenn. Code 47-18-101 etseq.;

qq. Texas s Deceptive Trade Practices Consumer Protection Act. Tex.Bus. & Com. Code 17.41 et seq.;

rr. Utah s Unfair Practices Act, and its Consumer Sales Practices Act,and also its Truth in Advertising Act. Utah Code 13-2-1 et seq.,13-5-1 et seq., and 13-11-1 et seq., and also 13-11a-1 et seq.,respectively;

ss. Vermont s Consumer Fraud Act. Vt. Stat., Title 9 2451 et seq.;tt. Virginia s Consumer Protection Act. Va. Code 59.1-196 et seq.;uu. Washington s Consumer Protection Act. Wash. Rev. Code

19.86.010 et seq.;

vv. West Virginia s Consumer Credit and Protection Act. W. Va. Code 46A-6-101 et seq.;

ww. Wisconsin s Deceptive Trade Practices Act. Wis. Stat. 100.18 etseq.;

xx. Wyoming s Consumer Protection Act. Wyo. Stat. 40-12-101 etseq.; and

yy. the equivalent and applicable laws in the other remaining U.S.territories.



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169. Apple is liable for attorney s fees and reasonable costs pursuant to Fla. Stat. 501.2105, and the comparable statutes of the other states, as described above, if Plaintiffs and

U.S. Class members prevail.

170. Plaintiffs also seek punitive damages.171. Plaintiffs seek a declaratory judgment under the relevant statutes, including

Fla. Stat. 501.2105.

172. Violations of the relevant computer laws, both federal and state, serve asadditional predicates for violations of these UDAP laws.

173. Plaintiffs and the U.S. Class reserve the right to allege other violations of lawwhich constitute other unlawful business acts or practices. Such conduct is ongoing and

continues to this date.

COUNT X

(U.S. Class Only: Fraudulent, Intentional Misrepresentation)


175. Apple represented to Plaintiffs and U.S. Class members that it would notcollect information about their every movement and location, and omitted disclosing

otherwise to Plaintiffs. See Essex Ins. Co. v Universal Entertainment & Skating Center,

Inc., 665 So. 2d 360 (Fla. 5th DCA 1995) (discussing fraud generally).

176. Apple not only knew that its privacy terms and conditions policy was, andcontinues to be, false, deceptive and untrue, by omitting that Apple will track users, but

Apple also intended for Plaintiffs and U.S. Class members to rely on its deceptive or omitted

statements.



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177. Apple s fraud is comprised both by the omissions of proper disclosures to itsusers and by its illegal tracking of their movements.

178. Plaintiffs and U.S. Class members did not know about Apple s omissions.179. Plaintiffs and U.S. Class members did not know that Apple has been tracking

their movements.

180. Plaintiffs and U.S. Class members, acting as ordinary consumers, reasonablyrelied on Apple s representations. Plaintiffs had a right to rely on Apple s representations.

Plaintiffs and U.S. Class members reliance on Apple s omissions was a substantial factor

in causing their harm. Apple s tracking of users was and is material, and Plaintiffs and U.S.

Class members reasonably believed that their every movements would not be tracked.

181. Plaintiffs and U.S. Class members were damaged in the amount of moneyrequired to purchase Apple s products, because they would have purchased other products

had they been aware of the material fact that Apple s Devices track their users locations.

182. Plaintiffs and the U.S. Class seek punitive damages from Apple.183. Apple had and continues to have a duty of good faith, which implicitly

includes a duty not to deceive consumers, and also not to conduct this sort of covert digital

surveillance on consumers. And they certainly have a duty not to stalk consumers or to

facilitate others doing that. But that is exactly what Apple has done and continues to do.

184. To remedy Apple s intentional omission to consumers, and omission ofclarifying statements during the sales process, Plaintiffs and U.S. Class members seek to

rescind the contracts, and thereby disgorge all monies paid to Apple for these products.

Plaintiffs also seek all other damages sought in this complaint.



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COUNT XI

(U.S. Class Only: Negligent Misrepresentation)


186. Apple omitted a material fact that purchasers would be tracked at all timesduring its sale of iPhones, iPads and other Devices to consumers, and during its installation

of the iOS 4 operating system on older Devices through what it told users were software

upgrades.

187. Apple was negligent in making the omissions because it should have knownthat whether their every movements would be tracked, recorded and stored for later use was

material to consumers.

188. Apple, in making that omission intended, or expected, that Plaintiffs and U.S.Class members would rely on the omission.

189. Plaintiffs justifiably relied on Apple s omissions about its tracking ofpurchasers, and would not have purchased Apple s products but for the omissions.

190. Indeed, Apple has recently stated that its collection of individual location datawas an unintentional bug in its operating systems. If it truly was a bug, then Plaintiffs

being tracked was the result of Apple s negligence, in which case Apple s failure to tell

Plaintiffs that they would be tracked was likewise negligent. Also, if true, then Plaintiffs

could not have possibly authorized Apple to collect their individual location data because

even Apple, the author of its own privacy Terms and Conditions, did not envision the

individual location data tracking, storage or transmittal to Apple.

191. Plaintiffs were damaged in amounts equal to the prices they paid for Apple



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Devices and products.

192. Apple s omissions were material and directly and proximately causedordinary consumers acting reasonably, Plaintiffs and U.S. Class members included, to buy

the iPhone and iPad products, and other Devices. Without Apple s omissions of the material

fact that users location data would be collected, the products would not have been

purchased, and Plaintiffs would not have suffered damages.

193. Plaintiffs seek punitive damages from Apple.COUNT XII

(U.S. Class Only: Unjust Enrichment, Money Had and Received)


195. Unjust enrichment results from a transfer that is ineffective to conclusivelyalter ownership rights.21 Here, Apple s omissions made Plaintiffs and U.S. Class members

believe that a term material to the contract was different than it actually was. Apple intended

to track its users, storing their location data and transferring that data back to Apple to build a

database so that it could sell billions of dollars in location-based advertisements. Plaintiffs

did not agree to be Apple s mules they did not agree to be tracked, nor to collect data for

Apple. Morally and ethically and therefore, in equity Apple has gained a benefit for

which it has not exchanged consideration. Apple promised products capable of certain tasks,

but instead, like the Trojan Horse, delivered products to spy on Plaintiffs and U.S. Class

members and to sell their personal location information at a future date. This constitutes at

least a partial failure of consideration.

21 See Restatement, Third, of Restitution and Unjust Enrichment, 1, comment b (Discussion Draft 2000).



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was an unintentional bug in its operating systems. If it truly was a bug, then Plaintiffs

could not have possibly authorized Apple to collect their individual location data because

even Apple, the author of its own privacy Terms and Conditions, did not envision the

individual location data tracking, storage and transmittal to Apple.

202. Products supplied were inadequate consideration for the monies paid and thevalue of Plaintiffs individual location data created, stored and misappropriated by Apple.

These contracts fail for want of consideration.

203. Apple accepted and retained money paid to it by Plaintiffs, and Plaintiffsindividual location data. The affirmative, knowing and intentional misrepresentations and

omissions of Apple, which Plaintiffs reasonably relied upon, in combination with Apple s

blatant breach of Plaintiffs privacy, constitute circumstances that make it inequitable for

Apple to retain Plaintiffs money or the benefit of Plaintiffs location data.

COUNT XIII

(U.S. Class Only: Negligence)


205. Apple had a duty to Plaintiffs not to track, collect, or transmit their individuallocation data because Apple lacked authorization from Plaintiffs to undertake those activities.

206. Apple breached this duty to Plaintiffs by tracking, collecting, and transmittingtheir individual location data.

207. Indeed, Apple has recently stated that its collection of individual location datawas an unintentional bug in its operating systems. If it truly was a bug, then Plaintiffs

being tracked was the result of Apple s negligence. Also, if true, then Plaintiffs could not



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have possibly authorized Apple to collect their individual location data because even Apple,

the author of its own privacy Terms and Conditions, did not envision the individual location

data tracking.

208. Apple s breach of its duty to Plaintiffs directly and proximately caused thePlaintiffs damage in the forms of:

a. Exposing their location data in an unencrypted database;b. Shortening the battery life of their Devices by drawing power for

the unauthorized creation, accumulation and transmittal of

individual location data through communication with cell towers,

wireless hotspots and GPS infrastructure;

c. Requiring more frequent recharges of Device batteries and theexpenses associated therewith;

d. Reducing the storage capability of their devices by covertlyallocating limited device resources to create and store a database of

individual user location information;

e. Creating longer processing times for legitimate Device usesbecause of resources drawn on by Apple s location data activities;

f. Causing an increase in data transfer expenses for users with limiteddata packages.

209. Further, Apple is subject to a heightened standard of care towards its users if itis a common carrier by virtue of its transporting information initiated by, and sent to, users of

its iPhones, iPads, and other Devices.



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COUNT XIV

(U.S. Class Only: Invasion of Privacy)


211. Google intruded on U.S. Plaintiffs affairs or seclusion by prying intoPlaintiff s individual location several times a minute, sharing that information with third

parties, and sending targeted ads to Plaintiffs on his smartphone at his precise location.

212. This obtrusion is objectionable to Plaintiffs and would be objectionable to areasonable person. Plaintiffs location, UDID and acts and transactions on their Devices are

within their own private domain and are private.

213. Apples acts and omissions have directly and proximately damaged Plaintiffsas described throughout this complaint.

PRAYER FOR RELIEF

WHEREFORE Plaintiffs pray for judgment against Apple as follows:

A. For an order certifying the U.S. Class and the International Class, asdefined herein, appointing undersigned counsel as Class Counsel for

both Classes, approving U.S. Plaintiffs as U.S. Class representatives,

approving all Plaintiffs as International Class representatives, and

requiring that notice be provided to the Classes at Apple s expense,

pursuant to Fed. R. Civ. P. 23;

B. For declaratory and injunctive relief, including enjoining Apple fromcontinuing to omit its true intentions about tracking purchasers of its

products, and requiring Apple to stop tracking its products users;



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C. For judgment on behalf of the Classes as defined herein for the amountof any payments made to Apple with interest thereon;

D. For exemplary, treble or punitive damages;E. For reasonable attorneys fees and costs; andF. For such other and further relief as this Court deems equitable or just

under the circumstances of Apple s ongoing activities and omissions.

DEMAND FOR JURY TRIAL

Plaintiffs, on behalf of themselves and all others similarly situated, hereby demand a

trial by jury on all issues so triable against Apple.

Respectfully submitted,

s/ Aaron MayerAaron C. MayerFBN: 0076983MAYER LAW GROUP,LLC18 Carolina St., Suite BCharleston, SC 29403

T: (843) 376-4929F: (888) [email protected]

Trial Counsel for Plaintiffs

2011 Aaron Mayer


apple i case - amended complaint

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