FERN MARGOLIS v. APPLE INC (2024)

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

In this putative nationwide class action, nine named plaintiffs allege that defendant Apple Inc. affirmatively misled iPhone 7 users about the performance degradation these devices would suffer upon downloading Apple's iOS 15 software. Plaintiffs contend that Apple, motivated by strong profit incentives, zealously encouraged iPhone 7 users to download the software, resulting in the decline in value and functionality of the plaintiffs' devices in violation of federal and state law.

Apple moves to dismiss the plaintiffs' claims under Rule 12(b)(6), contending that the complaint fails to state any valid causes of action. For the following reason, the Court grants Apple's motion to dismiss with leave to amend except as to Count II, which adequately states a claim under California's Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code § 502, and Count IV, which adequately states a California common law trespass to chattels claim.

BACKGROUND 1

The plaintiffs are California, New York, Virginia, Louisiana, and North Carolina residents and owners of defendant Apple's iPhone 7 devices that suffered from performance degradations after plaintiffs downloaded Apple's iOS 15 software on the devices. See Compl., Dkt. No. 1 ¶¶ 21–29, 29 n.1.² The plaintiffs seek to certify a class of “[a]ll purchasers, owners, users, or lessees of any iPhone 7 Device in the United States that was updated to any version of iOS 15,” as well as California, New York, Louisiana, North Carolina, and Virginia subclasses. Id. ¶¶ 92–93. Defendant Apple, incorporated under the laws of California and headquartered in Cupertino, CA, is “one of the world's largest developers and sellers of mobile phones and other consumer electronic devices.” Id. ¶¶ 30–31.

Apple first released the iPhone in 2007 and has typically released a new model of the phone each year since. Compl. ¶ 32. Apple's iOS software is its “proprietary mobile operating system that serves as the operating system for the iPhone.” Id. “Apple generally releases a new major iOS version each year alongside its release of a new iPhone model” and designates that annual iOS version with a number. Id. Apple releases periodic updates to an annual iOS version following its initial release. Id. Apple provides those updates to customers for free and “advertises that iPhones will be able to run on new iOS versions, which will add security enhancements and improve their devices.” Id. ¶ 33. Once the software update is installed, Apple informs customers that the software cannot be downgraded to the previous iOS version. Id. ¶ 54.

In September 2016, Apple began selling the iPhone 7 and iPhone 7 Plus (collectively, “iPhone 7 Devices”). Compl. ¶¶ 3, 37. These devices use Apple's A10 Fusion chip to support their processing power and were the last of Apple's iPhone models to use that chip. Id. ¶ 11.

In a September 2016 press release, Apple described the iPhone 7 Device as “the best, most advanced iPhone ever, packed with unique innovations that improve all the ways iPhone is used every day.” Compl. ¶ 39. In that release, Apple's senior vice president of worldwide marketing described the A10 Fusion chip as “the most powerful chip on any smartphone while delivering the best battery life ever in an iPhone.” Id. The first iOS version that operated on the iPhone 7 Devices was iOS 10. Id. ¶ 43.

Apple released iOS 15 in 2021 alongside the iPhone 13 and made iOS 15 available for the iPhone 7 Devices. Compl. ¶¶ 3, 78. Apple promoted, advertised, and encouraged “all users” of the iPhone to download iOS 15 because of its reported “features and improvements,” “security content,” “updates,” and “fixes.” Id. ¶¶ 33–34. Apple expended significant resources marketing iOS 15's release, including at the 2021 Worldwide Developer Conference, on its website, and in notifications directly to customers' devices. Id. ¶¶ 48–51. “Apple's descriptions of each version of iOS 15 built on its representations about the previous versions, communicating to its customers that each version improved the performance of prior versions.” Id. ¶ 55. “None of these statements that Apple made promoting iOS 15,” the plaintiffs allege, “stated in any way that the update would make iPhone 7 Devices perform worse than they did on any prior version of iOS 15.” Id. The plaintiffs contend that “Apple's fervent promotion and encouragement of customers to download iOS 15, and its warnings that the new version of iOS provided important security updates, did not provide customers with any meaningful choice” whether to install iOS 15. Id. ¶ 57.

The plaintiffs allege that iOS 15 degraded the performance of the iPhone 7 Devices in several ways, including, for example, by causing slowed performance across applications and functions, lags, glitches, freezes, sudden reboots, and poor battery health. See Compl. ¶¶ 21–29, 58–71. They contend that the impact of iOS 15 on iPhone 7 Devices was particularly acute because iOS 15 catered to the iPhone 8 and later models that had more powerful bionic chips and greater memory capacity. Id. ¶¶ 75–78. According to the plaintiffs, the “much-less-advanced iPhone 7 Devices are simply not able to run iOS 15 as well and suffer performance degradations in basic operations as compared to prior iOS versions that were not as advanced.” Id. ¶ 78.

The plaintiffs allege that Apple has a business and profit incentive to not only release new advanced products and software updates but also advertise these advancements to existing customers who are likely to download the software at the cost of reduced performance. They contend that “[t]he constant advances in the capabilities and complexity of Apple's new iPhone models and iOS versions that it releases each fall are a core part of its business model.” Compl. ¶ 79. The plaintiffs allege that Apple was “well aware” of the performance issues which iOS updates would cause to iPhone 7 Devices. Id. ¶ 87. They assert that, instead of preventing iPhone 7 Device users from downloading iOS 15 onto their devices or affirmatively disclosing the risks, Apple made the software available while misrepresenting and concealing its true effects. See id. ¶¶ 86–90. According to the plaintiffs, doing so “result[s] in immense added profit for the Company” as “customers turn to purchasing new devices” because of the performance degradation. Id. ¶ 90.

As a result of Apple's conduct, the plaintiffs allege that they and the putative class suffered “significant harm,” including “the decline in value of their devices as a result of iOS 15 being downloaded onto them, increased time and expense in dealing with device performance issues, the cost of replacing the battery in their devices, and not receiving the benefit of the bargain when purchasing their iPhone 7 Devices.” Compl. ¶ 91.

Plaintiffs assert ten causes of action arising under federal and state law and seek damages as well as declaratory and injunctive relief. The plaintiffs allege violations of: (I) the federal Computer Fraud and Abuse Act, 18 U.S.C. § 1030, et seq.; (II) California's Comprehensive Computer Data Access and Fraud Act, Cal. Penal Code § 502, et seq.; (III) California's False and Misleading Advertising Law (FAL), Cal. Bus. & Prof. Code § 17500; (IV) California common law trespass to chattels; (V) California's Unfair Competition Law (UCL), Cal. Bus. & Prof. Code § 17200, et seq.; (VI) New York's General Business Law § 349, et seq.; (VII) New York's General Business Law § 350, et seq.; (VIII) Louisiana's Unfair Trade Practices and Consumer Protection Law, La. Rev. Stat. Ann. § 51:1401, et seq.; (IX) North Carolina's Unfair Trade Practices Act, N.C. Gen. Stat. Ann. § 75-1.1, et seq.; and (X) Virginia's Consumer Protection Act, Va. Code Ann. § 59.1-196, et seq. The plaintiffs bring the federal and California causes of action on behalf of the entire class. Compl. ¶ 103. In the alternative, the California Plaintiffs bring Counts II through V on behalf of the California Subclass, the New York Plaintiffs bring Counts VI and VII on behalf of the New York Subclass, the Louisiana Plaintiff brings Count VIII on behalf of the Louisiana Subclass, the North Carolina Plaintiff brings Count IX on behalf of the North Carolina Subclass, and the Virginia Plaintiff brings Count X on behalf of the Virginia Subclass. Id.

LEGAL STANDARD

To comply with the pleading requirements of Federal Rule of Civil Procedure 8(a)(2) and survive a Rule 12(b)(6) motion to dismiss, the plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Alt. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Legal conclusions “can provide the framework of a complaint” but “must be supported by factual allegations.” Id. at 679. The Court must “accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029–30 (9th Cir. 2009).

Consumer-protection claims that sound in fraud are subject to Federal Rule of Civil Procedure 9(b)'s heightened pleading requirements. See Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102–04 (9th Cir. 2003). Rule 9(b) requires that, “when fraud is alleged, a party must state with particularity the circumstances constituting fraud.” Kearns v. Ford Motor Co., 567 F.3d 1120, 1124 (9th Cir. 2009) (cleaned up). “Rule 9(b) demands that the circumstances constituting the alleged fraud be specific enough to give defendants notice of the particular misconduct ․ so that they can defend against the charge and not just deny that they have done anything wrong.” Id. (cleaned up).

ANALYSIS

I. Apple's Requests for Judicial Notice Are Granted.

In support of its motion to dismiss, Apple requested judicial notice of various webpages concerning iOS 15 updates as well as the iOS 15 Software License Agreement. The Court grants Apple's requests for judicial notice because each of the documents at issue is either incorporated by reference into the plaintiffs' complaint or available from a source whose accuracy cannot reasonably be questioned. Fed. R. Evid. 201(b). While the Court takes judicial notice of the existence and content of the documents at issue, it will not take judicial notice of the underlying truth of any factual assertions therein.

II. The Plaintiffs Fail To Adequately Plead a Claim Under 18 U.S.C. § 1030.

To state a claim under the relevant provision of the federal Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, a plaintiff must establish that the defendant “knowingly cause[d] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause[d] damage without authorization, to a protected computer.” 18 U.S.C. § 1030(a)(5)(A).

The plaintiffs fail to adequately plead a claim under 18 U.S.C. § 1030(a)(5)(A) for two independent reasons.

First, the complaint fails to plausibly plead that Apple acted “intentionally.” Although this is a civil case, the CFAA is a criminal statute that must be construed in light of the fact that the conduct prohibited thereby can be criminally prosecuted. See LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1134 (9th Cir. 2009) (noting that “although this case arises in a civil context, our interpretation ․ is equally applicable in the criminal context” because § 1030 is “primarily a criminal statute”). The CFAA's legislative history makes clear that “intent,” as used in Section 1030(a)(5)(A), should be understood as synonymous with “purpose” as that term is used in the Model Penal Code. See H.R. Rep. No. 98-894, at 17, 20 (1984) (“The Committee intends that the term ‘with the intent’ have the same culpable state of mind as the term ‘purpose’ as used in the proposed Model Penal Code (§ 2.02).”). This construction not only is consistent with the statute's legislative history but also gives meaning to the distinction between acting “intentionally” and “knowingly” that Congress established within 1030(a)(5)(A) itself when determining what mens rea requirement must be satisfied to establish civil or criminal liability under that section.

Under the Model Penal Code, “A person acts purposely with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.” § 2.02. Here, Apple's alleged conduct falls squarely within Section 2.02's first prong because it involves “the nature of [Apple's] conduct or a result thereof.” One acts with “purpose” under this standard when he “ ‘consciously desires’ a particular result.” Borden v. United States, 593 U.S. 420, 426 (2021).

To state a claim, then, the plaintiffs must plausibly plead that it was Apple's “conscious desire” to cause damage to the plaintiffs' iPhone 7 Devices, not simply that Apple knew such damage might occur. Although the complaint alleges generally that Apple “intentionally caused damages without authorization to Plaintiffs' iPhone 7 Devices,” Compl. ¶ 106, such a bare bones recitation of the elements of legal claim does not satisfy Rules 8 and 12. See Twombly, 550 U.S. at 570. The plaintiffs allege further that Apple has a powerful profit motive to develop new iOS updates that damage older devices, that Apple regularly tests iOS updates prior to their release, and that Apple does not recommend or make all iOS versions available for download on all models. See Compl. ¶¶ 14, 16, 36, 80, 90. On those facts, the plaintiffs ask the Court to infer that Apple intentionally damaged their iPhone 7 Devices in order to encourage them to purchase newer iPhones.

While plaintiffs' allegations would support an inference that Apple acted with knowledge that iOS 15 could negatively impact iPhone 7 Devices, they do not support a plausible inference that Apple intentionally damaged their devices. On the pleaded facts, it is equally plausible that Apple concluded, for example, that the benefits of iOS 15 for iPhone 7 Device users outweighed any possible loss of performance. Plaintiffs' allegation that Apple does not make software updates available for all older models and in fact expressly prevents customers from downloading new software onto those devices further undermines their theory that Apple intends to force iPhone 7 customers into buying new phones by damaging their devices. If plaintiffs' theory were correct, Apple would have permitted even older phones, like the iPhone 6, to upgrade to iOS 15.

In combination, the allegations in plaintiffs' complaint do not plausibly suggest that Apple's purpose in making iOS 15 available to iPhone 7 users was to damage their devices and force plaintiffs' purchase of newer phones.

Second, and as a separate matter, the complaint fails to adequately establish the loss threshold requirement. Under the CFAA, the plaintiffs must plead “loss to 1 or more persons during any 1-year period ․ aggregating at least $5,000 in value.” 18 U.S.C. §§ 1030(c)(4)(A)(i)(I), 1030(g). The complaint alleges that the iPhone 7 Devices originally cost between $649 and $969, see Compl. ¶ 38, and that Apple's conduct generally caused the iPhone 7 Devices to be “worth less than prior to the degradation.” id. ¶ 107. That alone, however, is not enough to plausibly allege a loss of “at least $5,000” in value in “any 1-year period.”

In their opposition brief, the plaintiffs argue that “[a]ssuming conservatively that the putative class contains one million members” and “even if the performance impairments caused by the installation of iOS 15 on iPhone 7 caused only $0.005 damage to each class members' device, the Complaint plausibly alleges that the loss requirement of the CFAA is satisfied.” Dkt. No. 42, at 22. The complaint does not, however, make any specific monetary allegations about the loss in value to the plaintiffs' iPhone 7 Devices, nor does it establish facts from which the Court could infer that such loss occurred within any specific “1-year period.” Accordingly, the plaintiffs have failed to plead facts satisfying the loss threshold.³

Apple also contends that the plaintiffs' allegations that they downloaded iOS 15 voluntarily means that Apple did not damage their devices “without authorization.” Unlike the arguments addressed above, this one lacks merit. Absent specific and adequate disclosure of the risks of downloading iOS 15, the plaintiffs' voluntary installation of that software on their devices did not provide Apple with authorization to damage those devices. The statute's very purpose is to thwart computer hacking, but Apple's construction would deny a claim to anyone who voluntarily downloads malware or spyware containing secret and malicious code. That cannot be what Congress intended in passing the CFAA. See generally 18 U.S.C. § 1030.

III. The Plaintiffs Adequately Plead a Claim for Trespass to Chattels Under California Law.

To state a claim for trespass to chattels under California common law, the plaintiff must establish that the “(1) defendant intentionally and without authorization interfered with plaintiff's possessory interest in the computer system; and (2) defendant's unauthorized use proximately resulted in damage to plaintiff.” eBay, Inc. v. Bidder's Edge, Inc., 100 F. Supp. 2d 1058, 1069–70 (N.D. Cal. 2000) (citing Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1566 (1996)).

As noted already, plaintiffs' allegations do not state a plausible claim that Apple acted with the purpose of damaging their phones. This is not dispositive of their California common law claim, however, because the mens rea standard that applies to California trespass to chattels claims differs from the standard applicable to plaintiffs' CFAA claim. “[T]he intent necessary to prove trespass to chattels includes intentional behavior that only mistakenly causes harm as well as conduct committed willfully.” Crab Boat Owners Ass'n v. Hartford Ins. Co. of the Midwest, No. C03–05417 MHP, 2004 WL 2600455, at *5 (Nov. 15, 2004); cf. Roberts v. Permanente Corp., 188 Cal. App. 2d 526, 530–31 (1961) (holding in the related context of a trespass to land action that “intent to harm” is not required and that, instead, “[t]he doing of an act which will to a substantial certainty result in the entry of foreign matter upon another's land suffices for an intentional trespass ․ upon which liability may be based”).

Accordingly, for the purposes of their trespass to chattels claim, plaintiffs need only plausibly allege that Apple made iOS 15 available to plaintiffs' iPhone 7 Devices and encouraged them to install it with knowledge that it would damage their devices. As noted above, plaintiffs' allegations satisfy that standard.

Apple separately contends that dismissal is proper because plaintiffs' allegations do not adequately plead performance degradation significant enough to establish a claim for trespass to chattels. The complaint, however, alleges several examples of performance degradations concurrently impacting the plaintiffs' devices including loss of battery life, crashes, and slowdowns. See, e.g., Compl. ¶¶ 21–29, 62–68. At least for the purposes of Rule 12, these allegations plausibly support a claim that installation of iOS 15 on the plaintiffs' devices interfered with their possessory interest in those devices by preventing them from using them—which is perhaps the most important interest served by the plaintiffs' possession of their devices. See Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1353 (2003) (noting that “the decisions finding electronic contact to be a trespass to computer systems have generally involved some actual or threatened interference with the computers' functioning”) (collecting cases); see, e.g., Thrifty-Tel, 46 Cal. App. 4th at 1566–67 (holding that the plaintiff had pleaded and proved a claim for trespass to chattels where the plaintiff established that “automated calling overburdened the system, denying some subscribers access to phone lines”).

Apple also seeks to dismiss the plaintiffs' trespass to chattels claim on the ground that California's economic loss rule bars this claim. That argument too lacks merit. Under the economic loss rule, a purchaser must “recover in contract for purely economic loss due to disappointed expectations, unless he can demonstrate harm above and beyond a broken contractual promise.” Robinson Helicopter Co. v. Dana Corp., 34 Cal. 4th 979, 988 (2004). Its aim is to prevent “the law of contract and the law of tort from dissolving one into the other.” Id. (citation omitted). Here, the plaintiffs have pleaded a trespass to chattels claim seeking to recover damages that are distinct from any breach of contract or “disappointed expectations” relating to Apple's Software License Agreement. The alleged harm includes the decline in value of the plaintiffs' devices, the cost of replacing their batteries, and the increased time and expense of dealing with the device performance issues. See Compl. ¶ 91. Because plaintiffs are not seeking to use their tort claim to recover for disappointed contractual expectations, the economic loss rule does not their trespass to chattels claim. See Dhital v. Nissan N. Am., Inc., 84 Cal. App. 5th 828, 841 (2022) (holding that where “plaintiffs' fraudulent inducement claim alleges presale conduct by Nissan (concealment) that is distinct from Nissan's alleged subsequent conduct in breaching its warranty” the former was not barred by the economic loss rule); see also Grace v. Apple, Inc., No. 17-CV-00551-LHK, 2019 WL 3944988, at *10 (N.D. Cal. Aug. 21, 2019) (holding that that the economic loss rule did not bar plaintiffs' trespass to chattels claim because that claim arose from Apple's intentional, post-purchase conduct and Apple had an “independent tort duty not to intentionally interfere with Plaintiffs' possession of their iPhones”); In re Apple Inc. Device Performance Litig., 347 F. Supp. 3d 434, 456 (N.D. Cal. 2018), on reconsideration in part, 386 F. Supp. 3d 1155 (N.D. Cal. 2019) (holding that the economic loss rule did not bar the plaintiffs' trespass to chattels claim against Apple where the plaintiffs pleaded the trespass to chattels claim with attendant damages “separate and apart from any breach of contract”).

For these reasons, Apple's motion to dismiss plaintiffs' trespass to chattels claim is denied.

IV. The Plaintiffs Adequately Plead a Claim Under the Comprehensive Computer Data Access and Fraud Act.

To state a claim under California's Comprehensive Computer Data Access and Fraud Act (CDAFA), the plaintiff must establish that the defendant “[k]nowingly accesse[d] and without permission add[ed], alter[ed], damage[d], delete[d], or destroy[ed] any data, computer software, or computer programs which reside or exist internal or external to a computer, computer system, or computer network,” Cal. Penal Code § 502(c)(4), or “[k]nowingly and without permission disrupt[ed] or cause[d] the disruption of computer services or denie[d] or cause[d] the denial of computer services to an authorized user of a computer, computer system, or computer network,” Cal. Penal Code § 502(c)(5).

In moving to dismiss this claim, Apple argues that the plaintiffs have failed to plead that it acted knowingly. The plaintiffs have, however, adequately pleaded knowledge under the CDAFA. For example, the plaintiffs infer Apple's knowledge about the damage new versions of iOS causes older devices from Apple's testing of iOS updates prior to release and its “novel approach of providing new versions of iOS 15 for the iPhone 7 Devices instead of making iOS 16 available for these devices.” Compl. ¶ 87; id. ¶¶ 88–89. While such allegations may not plausibly plead that Apple intentionally damaged their devices, they are sufficient to plausibly plead Apple's knowledge that iOS 15 would have negative effects when installed on iPhone 7 Devices.

Apple's remaining challenges are without merit. For reasons discussed above, the plaintiffs' voluntary installation of iOS 15 does not defeat their claim and the plaintiffs have adequately pleaded that Apple caused damage to their devices “without permission.”

V. The Plaintiffs Fail to Plead Violations of State Consumer Protection Laws.4

A. The Plaintiffs Fail To Plead a Viable Fraudulent Omission Theory Because They Fail To Plead Reliance.

The plaintiffs' state consumer protection claims are predicated on a fraudulent omission theory, which requires, among other things, that the plaintiffs plead reliance. See Daniel v. Ford Motor Co., 806 F.3d 1217, 1225 (9th Cir. 2015); Cal Bus. & Prof. Code §§ 17200, 17500, et. seq.; Cal. Penal Code § 502; N.Y. Gen. Bus. Law §§ 349, 350, et seq.; N.C. Gen. Stat. Ann. § 75-1.1, et seq.; Va. Code Ann. § 59.1-196, et seq. Because such claims sound in fraud, they are subject to the heightened pleading standards of Federal Rule of Civil Procedure Rule 9(b).

To prove reliance on an omission, a plaintiff must generally establish that “the defendant's nondisclosure was an immediate cause of the plaintiff's injury-producing conduct.” Daniel, 806 F.3d at 1225. “A plaintiff need not prove that the omission was the only cause or even the predominant cause, only that it was a substantial factor in his decision.” Id. “That one would have behaved differently can be presumed, or at least inferred, when the omission is material. An omission is material if a reasonable consumer would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question.” Id. (cleaned up). That requires showing that “nondisclosure was an immediate cause.” Id.

Here, the plaintiffs have failed to plead the element of reliance. Regarding the specific experience of the named plaintiffs, the complaint alleges only that they downloaded iOS 15. See Compl. ¶¶ 21–29. The complaint is devoid of facts regarding what statements by Apple each plaintiff looked at, did not look at, considered, or did not consider in deciding to download iOS 15. For example, no single plaintiff alleges that they received messages from Apple nor that they were otherwise aware of any statements by Apple regarding iOS 15's purported improvements, security measures, or updates. No plaintiff alleges that they would not have downloaded iOS 15 had Apple specifically disclosed the harms that the software would cause to their iPhone 7 Devices. That “all users” must view the Software License Agreement and were required to agree to the terms therein prior to downloading iOS 15 is insufficient.

In short, the Court lacks facts from which it may infer that Apple's nondisclosure or omission was an immediate cause of the plaintiffs' injuries or that the plaintiffs would have necessarily seen any further disclosures if Apple had provided them. Consequently, the plaintiffs have not pleaded a viable fraudulent omission theory that would support their state law causes of action.

B. The Plaintiffs' UCL and FAL Claims Fail To Plead Inadequate Remedies at Law.

Apple also argues that the insufficiency of the plaintiffs' pleading of Counts III and V provides an independent ground for dismissal of the plaintiffs' UCL and FAL claims. Under Sonner v. Premier Nutrition Corp., 971 F.3d 834 (9th Cir. 2020), a plaintiff “must establish that she lacks an adequate remedy at law before securing equitable restitution for past harm” under the UCL and FAL. Id. at 844. Although this requirement is reasonably easy to satisfy at the pleading stage, a plaintiff must at the very least plead that such remedies are unavailable. The plaintiffs' complaint, however, nowhere alleges that damages or other legal remedies are inadequate to remedy the harms they allegedly suffered. For that separate reason, plaintiffs fail to plead viable UCL or FAL claims.

CONCLUSION

For the foregoing reasons, the Court grants Apple's motion to dismiss the plaintiffs' claims except as to Count II and Count IV. The Court's dismissal of the remaining claims is with leave to amend. Any amended complaint addressing the deficiencies as to the remaining claims must be filed within 21 days of this Order.

IT IS SO ORDERED.

FOOTNOTES

2.   Dr. Fern Margolis and Mayer Margolis are California residents referred to as the “California Plaintiffs.” Compl. ¶¶ 21, 22, 29 n.1. Juan Padilla, Zev Lewinson, Eduardo Aranibar, and Elizabeth Guidice are New York residents referred to as the “New York Plaintiffs.” Id. ¶¶ 23–26, 29 n.1. Earl McFarland is a Virginia resident referred to as the “Virginia Plaintiff.” Id. ¶¶ 27, 29 n.1. Glennis Parker is a Louisiana resident referred to as the “Louisiana Plaintiff.” Id. ¶¶ 28, 29 n.1. Shaun Biddiscombe is a North Carolina resident referred to as the “North Carolina Plaintiff.” Id. ¶ 29 & n.1.

3.   The parties dispute whether the plaintiffs may satisfy the loss threshold requirement by aggregating the damages of all putative class members. The Court need not resolve this issue at this stage, but in anticipation of any amended complaint the Court notes its agreement with the plaintiffs that the best reading of the statutory text is that the plaintiffs may aggregate damages across the class to satisfy the loss threshold.

P. Casey Pitts United States District Judge