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`Case 5:18-cv-02813-EJD Document 168 Filed 12/02/19 Page 1 of 18
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
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`
`
`IN RE: MACBOOK KEYBOARD
`LITIGATION
`
`Case No. 5:18-cv-02813-EJD
`
`ORDER DENYING DEFENDANT’S
`MOTION TO DISMISS
`Re: Dkt. No. 130
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`Plaintiffs claim the Apple MacBook, MacBook Pro, and MacBook Pro with Touch Bar
`laptops they purchased in 2016, 2017, and 2018 contain a defective “butterfly” keyboard design
`that causes their keyboards to fail—resulting in sticky keys, unresponsive keys, and keys that do
`not register strokes properly. First Am. Consolidated Class Action Compl. (“FAC”) ¶¶ 23, 25, 29,
`31, 37, 39, 44, 46, 52, 54, 58, 60, 66, 68, 76, 78, 84, 86. Plaintiffs bring a putative class action
`against Defendant Apple Inc. for allegedly selling MacBook, MacBook Pro, and MacBook Air
`laptops with defective keyboards in violation of state consumer protection and warranty laws. Id.
`¶¶ 1, 193-312. Plaintiffs seek monetary damages, equitable relief, attorneys’ fees, and costs. Id. ¶
`312. Apple moves to dismiss Plaintiffs’ FAC under Rule 12(b)(1) and Rule 12(b)(6). Mot. to
`Dismiss (Dkt. No. 130) at 2-3. For the reasons below, the court DENIES Apple’s motion.1
`
`
`
`1 The court has filed this order under seal because it contains material subject to sealing orders.
`Dkt. Nos. 135, 157. Within seven days of the filing date of this order, the parties shall provide the
`court a stipulated redacted version of this order, redacting only those portions of the order
`containing or referring to material for which the court has granted a motion to seal and for which
`the parties still request the material remain sealed. The court will then issue a redacted version of
`the order.
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`Case 5:18-cv-02813-EJD Document 168 Filed 12/02/19 Page 2 of 18
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`I.
`
`PROCEDURAL HISTORY
`In October 2018, ten plaintiffs, citizens and residents of California, Florida, Illinois,
`Massachusetts, Michigan, New Jersey, New York, and Washington, filed a putative class action
`against Apple “on behalf of individuals who purchased model year 2015 or later Apple MacBook
`laptops and model year 2016 or later MacBook Pro laptops.” Consolidated Class Action
`Complaint (“CCAC”) (Dkt. No. 66) ¶¶ 1, 8-18. Plaintiffs claimed the MacBook and MacBook
`Pro laptops have defective “butterfly” keyboards that place consumers at a “constant threat of non-
`responsive keys and keyboard failure.” Id. ¶ 2. Accordingly, Plaintiffs brought ten claims against
`Apple for alleged violations of: (1) the Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code
`§ 17200, et seq.; (2) Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750, et seq.;
`(3) fraudulent concealment; (4) breach of the covenant of good faith and fair dealing (common
`law); (5) Song-Beverly Consumer Warranty Act (“Song-Beverly Act”), Cal. Civ. Code § 1792, et
`seq.; (6) Washington Consumer Protection Act, Wash. Rev. Code § 19.86.010, et seq.; (7) Florida
`Deceptive and Unfair Trade Practices Act, Fla. Stat. § 501.201, et seq.; (8) Illinois Consumer
`Fraud and Deceptive Business Practices Act, 815 Ill. Comp. Stat. § 505/1, et seq.; (9) New Jersey
`Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1, et seq.; (10) New York General Business Law §
`349; and (11) Michigan Consumer Protection Act, Mich. Comp. Laws § 445.901, et seq. Id. ¶¶
`174-302. In December 2018, Apple filed a Motion to Dismiss Plaintiffs’ CCAC and Request for
`Judicial Notice. Dkt. Nos. 72, 74. Soon after, Plaintiffs filed their Opposition and Apple filed a
`Reply. Dkt. Nos. 79, 82.
`In April 2019, the court granted in part and denied in part Apple’s Motion to Dismiss
`Plaintiff’s CCAC under Federal Rules of Civil Procedure 12(b)(6) and 9(b). Order (Dkt. No. 110).
`The court denied Apple’s Motion to Dismiss the non-California Plaintiffs’ claims under California
`law, deciding to defer the choice of law analysis. Id. at 5-6. The court also denied the motion as
`to Plaintiffs’ claims based on fraud by omission (id. at 13) and Plaintiffs’ claim under the unfair
`prong of California’s UCL (id. at 16).
`The court, however, granted Apple’s Motion to Dismiss Plaintiffs’ claims under the
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`CLRA, Song-Beverly Act, and implied covenant of good faith and fair dealing. Id. at 8, 15. In
`their Opposition, Plaintiffs claimed Apple’s Keyboard Service Program (“Program”) did not moot
`their CLRA and Song-Beverly Act claims because Apple could not “provide an effective fix to the
`defect” and the Program “does not provide all of the relief that they seek.” Id. at 14-15 (citing
`Pls.’ Opp’n at 22, 24). But, Plaintiffs did not allege any facts about the Program in the CCAC.
`Order at 15. Thus, “Plaintiffs d[id] not allege any facts showing that the Keyboard Service
`Program does not moot their claims under the CLRA and the Song-Beverly Act.” Id.
`Regarding the Program, Apple had requested the court to take judicial notice of an
`apple.com webpage that described the Program. Dkt. No. 74. The webpage represented that
`Apple will provide free service to model years 2015-2017 MacBooks and model years 2016-2017
`MacBook Pros with keyboards that malfunction in ways similar to the alleged failures that
`Plaintiffs have experienced. Id. at 14 (citing Ex. A). The webpage stated that the service “may
`involve the replacement of one or more keys or the whole keyboard.” Id. (quoting Ex. A). The
`court took judicial notice of the following facts under Federal Rule of Evidence 201(b): “(1)
`Exhibit A is an accurate depiction of an apple.com webpage, (2) Apple has made the above
`representations about the Key Board Service Program to the public through that website, and (3)
`Apple is providing free services to the models of MacBook and MacBook Pro listed on the
`website.” Order at 14.
`The order granted Plaintiffs leave to amend. Id. at 16. In May 2019, Plaintiffs filed their
`FAC. Dkt. No. 117. In June 2019, Apple filed a Motion to Dismiss Plaintiffs’ FAC. Dkt. No.
`130. Plaintiffs and Apple respectively filed an Opposition and Reply. Dkt. Nos. 148, 152. And
`the court heard oral argument on Apple’s Motion to Dismiss on November 21, 2019.
`II. BACKGROUND
`A. Plaintiffs’ Allegations in the FAC
`In May 2019, Plaintiffs, nine consumers from California, Florida, Illinois, Massachusetts,
`Michigan, New Jersey, New York, and Washington, filed a putative class action against Apple on
`behalf of persons “who purchased model year 2015 or later Apple MacBook laptops, model year
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`2016 or later MacBook Pro laptops, and model year 2018 or later MacBook Air laptops.” FAC ¶¶
`1, 8-16. Plaintiffs invoke jurisdiction in federal court under the Class Action Fairness Act, 28
`U.S.C. § 1332. Id. ¶ 18. Plaintiffs bring ten causes of action against Apple, stemming from
`allegedly defective butterfly keyboards for alleged violations of: (1) the UCL, Cal. Bus. & Prof.
`Code § 17200, et seq.; (2) CLRA, Cal. Civ. Code § 1750, et seq.; (3) fraudulent concealment; (4)
`Song-Beverly Act, Cal. Civ. Code § 1792, et seq.; (5) Washington Consumer Protection Act,
`Wash. Rev. Code § 19.86.010, et seq.; (6) Florida Deceptive and Unfair Trade Practices Act, Fla.
`Stat. § 501.201, et seq.; (7) Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill.
`Comp. Stat. § 505/1, et seq.; (8) New Jersey Consumer Fraud Act, N.J. Stat. Ann. § 56:8-1, et
`seq.; (9) New York General Business Law § 349; and (10) Michigan Consumer Protection Act,
`Mich. Comp. Laws § 445.901, et seq. (“MCPA”). Id. ¶¶ 193-312.
`Each Plaintiff alleges to have purchased a new MacBook, MacBook Pro, or MacBook Pro
`with Touch Bar laptop with the defective butterfly keyboard design. Id. ¶¶ 23, 29, 37, 44, 52, 58,
`66, 76, 84. Plaintiffs purchased their laptops after viewing Apple advertisements and marketing
`materials that “touted the MacBook’s thinness and represented that it has a highly responsive
`butterfly keyboard.” Id. ¶¶ 24, 30, 38, 45, 53, 59, 67, 77, 85. Specifically, Plaintiffs purchased
`their laptops after reviewing promotional material on Apple’s website that represented the
`MacBook as having a “more responsive keyboard.” Id.
`But, Plaintiffs claim their keyboards failed within one year of purchasing their laptops. Id.
`¶¶ 23, 25, 29, 31, 33, 37, 39, 44, 46, 52, 54, 58, 60, 66, 68, 76, 78, 84, 86. Plaintiffs experienced
`various keyboard issues, including sticky keys, unresponsive keys, and keystrokes that would not
`register. Id. ¶¶ 25, 31, 39, 46, 54, 60, 68, 78, 86. Plaintiffs allege they consulted with Apple or
`Apple certified technicians about their keyboard issues. Id. ¶¶ 27, 34, 40-43, 47-48, 50, 55-56, 61-
`62, 64, 69-70, 73-74, 79-82, 87-89. However, Apple’s troubleshooting and repair efforts did not
`resolve their issues. Id. ¶¶ 28, 36, 43, 51, 57, 65, 75, 83, 90.
`Plaintiffs allege that “Apple’s butterfly keyboard and MacBook are designed and produced
`in such a way that when minute amounts of dust or debris accumulate under or around a key,
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`United States District Court
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`Case 5:18-cv-02813-EJD Document 168 Filed 12/02/19 Page 5 of 18
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`keystrokes fail to register properly.” Id. ¶ 2. The keyboard fails when “the keys stick, register
`multiple key strikes when a key is pressed only once, or stop registering keystrokes.” Id. ¶ 1. And
`“[w]hen one or more keys on the keyboard fail, the MacBook can no longer perform its core
`function: typing.” Id. ¶ 2.
`
`Plaintiffs allege that Apple’s patent filings and in-house testing records show that Apple
`was aware of the defective butterfly keyboard design before selling MacBook laptops to the public
`in 2015. Id. ¶¶ 3, 134-154.
`
`
`
`
` Despite this awareness, Apple
`markets “the MacBook as having a superior and highly responsive keyboard” and “continue[s]
`selling it at a premium price.” Id. ¶¶ 3-4. Apple’s representations of the keyboard are “materially
`misleading” to consumers. Id. ¶ 4. Each Plaintiff claims: “Had he been aware of the existence of
`the keyboard defect, [he] would not have purchased his laptop or would have paid significantly
`less for it.” Id. ¶¶ 28, 36, 43, 51, 57, 65, 75.
`
`Apple provides a one-year limited warranty for each MacBook laptop. Id. ¶ 155. In
`relevant part, the warranty provides:
`
`
`WHAT IS COVERED BY THIS WARRANTY?
`
`Apple Inc. of One Infinite Loop, Cupertino, California 95014, U.S.A.
`(“Apple”) warrants the Apple-branded hardware product and Apple-
`branded accessories contained in the original packaging (“Apple
`Product”) against defects in materials and workmanship when used
`normally in accordance with Apple’s published guidelines for a
`period of ONE (1) YEAR from the date of original retail purchase by
`the end-user purchaser (“Warranty Period”).
` * *
`
`WHAT WILL APPLE DO IN THE EVENT THE WARRANTY IS
`BREACHED?
`
`If during the Warranty Period you submit a claim to Apple or an
`AASP in accordance with this warranty, Apple will, at its option:
`
`(i) repair the Apple Product using new or previously used parts that
`are equivalent to new in performance and reliability,
`
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`(ii) replace the Apple Product with the same model (or with your
`consent a product that has similar functionality) formed from new
`and/or previously used parts that are equivalent to new in performance
`and reliability, or
`
`(iii) exchange the Apple Product for a refund of your purchase price.
`Id. ¶ 156. Plaintiffs allege that “[w]hen a consumer submits a warranty claim, Apple instructs
`him or her to attempt futile repairs or troubleshooting or fails to provide an effective repair.” Id. ¶
`157.
`
`Moreover, Plaintiffs allege that the Program does not resolve keyboard issues. Id. ¶ 158.
`On June 28, 2018, Apple announced its Program for eligible MacBook and MacBook Pro laptops,
`model years 2015-2017, that experience keyboard issues. See id. ¶¶ 166-67. Plaintiffs claim the
`Program is Apple’s “eventual[ ] acknowledg[ment]” of the defect. Id. ¶ 5. Plaintiffs claim:
`“Apple’s internal documents produced in this litigation, and the experiences of numerous
`consumers, demonstrate that the Program has not delivered satisfactory relief to consumers who
`have experienced MacBook keyboard failures.” Id. (citing id. ¶¶ 166-84). The Program allegedly
`does not “cure” the design defect that causes keyboard failure. FAC ¶ 184.
`Plaintiffs take issue with the repairs and refund available through the Program. With
`respect to repairs, the Program offers to replace individual keys or the entire keyboard. Id. ¶ 168.
`Plaintiffs allege: “When Apple agrees to replace an entire keyboard under the Program, it merely
`replaces it with another defective keyboard. The replacement keyboards provided under the
`Program have not been updated or improved to address the root cause of the failures.” Id. ¶ 172
`(footnote omitted). Plaintiffs cite several comments from consumers online who claim to
`experience issues with the replacement keyboards they received through the Program. Id. ¶ 175.
`With regard to the refund, Plaintiffs claim the Program does not fully compensate them
`and other consumers for out-of-pocket expenses incurred while seeking repairs for their
`keyboards. Id. ¶ 182. Plaintiffs Rao, Gulker, and Ferguson, for example, paid for external
`keyboards and repairs. Id. ¶ 183. The Program notes that “consumers who have paid for repairs
`or replacements ‘can contact Apple about a refund’ under the Program, without any indication that
`any consumers will in fact receive a refund. Nor has Apple provided any information about how
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`consumers can obtain a refund, who is eligible for a refund, what sort of documentation, if any,
`consumers must provide to obtain a refund, or the amount of compensation Apple is willing to
`pay.” Id. ¶ 182.
`Plaintiffs allege Apple’s conduct has injured them. Id. ¶¶ 28, 36, 43, 51, 57, 65, 75, 83, 90.
`Plaintiffs seek monetary damages, attorneys’ fees and costs, and equitable relief, including “an
`order requiring Apple to: (1) adequately disclose the defective nature of the MacBook; and (2)
`return to Plaintiffs and Class members all costs attributable to remedying or replacing MacBook
`laptops, including but not limited to economic losses from the purchase of replacement laptops or
`keyboards.” Id. ¶ 312.
`In Apple’s Motion to Dismiss the FAC, Apple moves the court: (1) to dismiss all of
`Plaintiffs’ claims on grounds that Plaintiffs have not demonstrated an injury, Article III standing,
`or prudential standing; (2) to dismiss Plaintiffs’ CLRA claim for mootness; and (3) to dismiss
`Plaintiffs’ Song-Beverly Act claim for mootness. Mot. to Dismiss (Dkt. No. 130) at 1-3.
`III. LEGAL STANDARDS
`A. Federal Rule of Civil Procedure 12(b)(1)
`Federal Rule of Civil Procedure 12(b)(1) provides that a party may seek dismissal of a suit
`for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). A Rule 12(b)(1) motion
`challenges a court’s subject-matter jurisdiction and may be either facial or factual. Safe Air for
`Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted); Wolfe v. Strankman,
`392 F.3d 358, 362 (9th Cir. 2004) (citation omitted). When a defendant brings a facial challenge,
`as in this case, defendant claims the allegations in a complaint are “insufficient on their face to
`invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. “The district court resolves a facial
`attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff’s allegations as
`true and drawing all reasonable inferences in the plaintiff’s favor, the court determines whether the
`allegations are sufficient as a legal matter to invoke the court’s jurisdiction.” Leite v. Crane Co.,
`749 F.3d 1117, 1121 (9th Cir. 2014) (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir. 2013)).
`A party may seek dismissal of a suit for lack of subject-matter jurisdiction on grounds of mootness
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`and lack of standing “in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), not
`Rule 12(b)(6).” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
`B. Federal Rule of Civil Procedure 12(b)(6)
`Federal Rule of Civil Procedure 12(b)(6) provides that a party may seek dismissal of a suit
`
`for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). A court
`“must accept as true all factual allegations in the complaint and draw all reasonable inferences in
`favor of the nonmoving party.” Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am.,
`768 F.3d 938, 945 (9th Cir. 2014) (citation omitted). A court may dismiss a complaint on a Rule
`12(b)(6) motion “only where there is no cognizable legal theory or an absence of sufficient facts
`alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)
`(citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988), second am. opinion
`filed May 11, 1990)). Defeating a motion to dismiss requires that the complaint “contain[s]
`sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
`(2007)) (quotations omitted). A claim is plausible on its face “when the plaintiff pleads factual
`content that allows the court to draw the reasonable inference that the defendant is liable for the
`misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
`IV. DISCUSSION
`In Apple’s Motion to Dismiss the FAC, Apple argues that its Program provides Plaintiffs
`the remedy they seek, and thus, “moots their claims and eliminates their ability to establish injury
`or standing.” Mot. to Dismiss at 2. Apple moves the court: (1) to dismiss Plaintiffs’ claims under
`Rule 12(b)(1) on grounds that Plaintiffs have not demonstrated an injury, Article III standing, or
`prudential standing, (2) to dismiss Plaintiffs’ CLRA claim for mootness under Rule 12(b)(6), and
`(3) to dismiss Plaintiffs’ Song-Beverly Act claim for mootness under Rule 12(b)(6). Id. at 1.
`Because Plaintiffs establish standing, the court DENIES Apple’s Motion to Dismiss all of
`Plaintiffs’ claims under Rule 12(b)(1). Because Plaintiffs adequately plead claims under the
`CLRA and Song-Beverly Act that the Program does not moot their claims, the court DENIES
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`Apple’s Motion to Dismiss these claims under Rule 12(b)(6). Below, the court will first address
`Apple’s Request for Judicial Notice (“RJN”) (Dkt. No. 131). Next, the court will address the issue
`of standing. Third, the court will evaluate Plaintiffs’ claims under the CLRA and Song-Beverly
`Act.
`
`A. Judicial Notice
`Federal Rule of Evidence 201 provides that a court may take judicial notice of “a fact that
`is not subject to reasonable dispute.” Fed. R. Evid. 201(b). A fact is not subject to reasonable
`dispute when the fact: “(1) is generally known within the trial court’s territorial jurisdiction; or (2)
`can be accurately and readily determined from sources whose accuracy cannot reasonably be
`questioned.” Id.
`Apple requests that the court take judicial notice of: (1) Exhibit A, an apple.com webpage
`that describes the Program as it existed on December 3, 2018, (2) Exhibit B, an apple.com
`webpage that describes the Program as it existed on June 4, 2019, (3) “[t]he fact that Apple made
`the statements in Exhibits A and B to the public through the apple.com website,” and (4) that
`Apple is offering free service for certain models of the MacBook, MacBook Pro, and MacBook
`Air as listed on the website. See RJN at 2; see also Patel Decl. (Dkt. No. 130-1), Exs. A-B.
`In Exhibit A, Apple states it has found that “a small percentage of the keyboards in certain
`MacBook and MacBook Pro models may exhibit one or more of the following behaviors:”
`
`
` Letters or characters repeat unexpectedly
` Letters or characters do not appear
` Key(s) feel “sticky” or do not respond in a consistent manner
`Patel Decl., Ex. A. Apple represents that it will provide free service to eligible MacBooks, model
`years 2015-2017, and MacBook Pros, model years 2016-2017, that exhibit such behavior. Id.
`Service “may involve the replacement of one or more keys or the whole keyboard.” Id. Apple
`also represents that consumers who “believe [their] MacBook or MacBook Pro was affected by
`this issue,” and who paid for keyboard repairs, “can contact Apple about a refund.” Id. In Exhibit
`B, Apple makes these same representations, but includes the MacBook Air, model year 2018, and
`MacBook Pro, model years 2018-2019, in the Program. See Patel Decl., Ex. B.
`Case No.: 5:18-cv-02813-EJD
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`The court takes judicial notice of the following facts: (1) Exhibit A is an accurate depiction
`of the apple.com webpage for the Program for MacBook and MacBook Pro laptops as it existed on
`December 3, 2018, (2) Exhibit B is an accurate depiction of the apple.com webpage for the
`Program for MacBook, MacBook Pro, and MacBook Air laptops as it existed on June 4, 2019, (3)
`“[t]he fact that Apple made the statements in Exhibits A and B to the public through the apple.com
`website,” and (4) that Apple is offering free service under the Program for eligible models of
`MacBook, MacBook Pro, and MacBook Air laptops as listed on the website. See RJN at 2; see
`also Patel Decl., Exs. A-B; Fed. R. Evid. 201.
`These facts are “not subject to reasonable dispute” because they “can be accurately and
`readily determined from sources whose accuracy cannot reasonably be questioned.” See Fed. R.
`Evid. 201(b). Also, with respect to Exhibits A and B, Plaintiffs refer extensively to the Program in
`their FAC. In reviewing a Rule 12(b)(6) motion, the court may “consider[ ]” “[d]ocuments whose
`contents are alleged in a complaint and whose authenticity no party questions, but which are not
`physically attached to the pleading.” Tunac v. United States, 897 F.3d 1197, 1207 n.8 (9th Cir.
`2018) (citing Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on other grounds by
`Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002)) (quotations omitted).
`The court, however, does not take judicial notice of whether the Program effectively
`remedies the behavior associated with the allegedly defective keyboards—a question the parties
`vigorously dispute. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018)
`(“Just because the document itself is susceptible to judicial notice does not mean that every
`assertion of fact within that document is judicially noticeable for its truth.”). In sum, the court
`takes judicial notice of the apple.com webpages describing the Program (Exhibits A-B) and
`Apple’s representations to the public on those webpages.
`
`
`B. Plaintiffs Establish Standing Because The Program Does Not Moot Their
`Claims.
`Apple argues that “Plaintiffs cannot establish Article III or prudential standing because the
`Keyboard Service Program addresses and remediates the alleged keyboard defect on which all of
`
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`Northern District of California
`United States District Court
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`their claims depend.” Mot. to Dismiss at 5. Thus, Apple argues that the Program moots Plaintiffs’
`claims. Id. And therefore, Plaintiffs “cannot establish injury or standing.” Id. Specifically,
`Apple contends that Plaintiffs do not demonstrate injury or standing because Plaintiffs did not
`personally participate in the Program. Id. at 5-6. Rather, Plaintiffs “rely on supposed issues with
`the Program allegedly experienced by others and not themselves.” Id. at 5 (footnote omitted).
`
`Plaintiffs argue that the Program does not moot their claims, and thus, they can establish
`injury and standing. Plaintiffs claim the law does not require them to personally participate in “a
`repair program that leaves them no better off and which does not provide complete relief.” Opp’n
`at 9.
`
`Article III of the Constitution provides that federal courts only have jurisdiction over
`“cases” and “controversies.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992); Whitmore v.
`Arkansas, 495 U.S. 149, 154-55 (1990). “[T]he doctrine of standing serves to identify those
`disputes which are appropriately resolved through the judicial process.” Whitmore, 495 U.S. at
`155. Plaintiffs have the burden of showing that they have Article III standing to sue in federal
`court. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).
`To establish Article III standing, Plaintiffs must satisfy three elements – the “irreducible
`constitutional minimum of standing.” Lujan, 504 U.S. at 560. Plaintiffs must show they “have (1)
`suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant,
`and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, 136 S. Ct. at 1547
`(citation omitted). Injury-in-fact constitutes “an invasion of a legally protected interest which is
`(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.”
`Lujan, 504 U.S. at 560 (citations and quotations omitted). “Concrete” means that the injury,
`whether tangible or intangible, “actually exist[s].” Spokeo, 136 S. Ct. at 1548-49.
`“Particularized” means that the injury has harmed Plaintiffs “in a personal and individual way.”
`See id. at 1548 (citations and quotations omitted). Named representatives in class actions “must
`allege and show that they personally have been injured, not that injury has been suffered by other,
`unidentified members of the class to which they belong and which they purport to represent.”
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`Northern District of California
`United States District Court
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`Case 5:18-cv-02813-EJD Document 168 Filed 12/02/19 Page 12 of 18
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`Lierboe v. State Farm Mut. Auto. Ins. Co., 350 F.3d 1018, 1022 (9th Cir. 2003) (quoting Pence v.
`Andrus, 586 F.2d 733, 736-37 (9th Cir. 1978)).
`At the pleading stage, as is the case here, Plaintiffs “must ‘clearly . . . allege facts
`demonstrating’ each element” of standing. Spokeo, 136 S. Ct. at 1547 (quoting Warth v. Seldin,
`422 U.S. 490, 518 (1975)). If Plaintiffs do not have Article III standing, then the court must
`dismiss their suit for lack of subject matter jurisdiction. See Robertson v. Republic of Nicar., 2017
`WL 2730177, at *2 (N.D. Cal. June 26, 2017) (citing Cetacean Cmty. v. Bush, 386 F.3d 1169,
`1174 (9th Cir. 2004)).
`
`With respect to mootness, “[t]wo varieties of mootness exist: Article III mootness and
`prudential mootness.” Philips v. Ford Motor Co., 2016 WL 693283, at *5 (N.D. Cal. Feb. 22,
`2016) (citing Ali v. Cangemi, 419 F.3d 722, 723 (8th Cir. 2005) (en banc)) (quotations omitted).
`Article III mootness concerns the constitutional requirement that federal courts have jurisdiction
`over only “cases and controversies.” Philips, 2016 WL 693283, at *5 (citation and quotations
`omitted). Federal courts lack jurisdiction when an action becomes “moot.” Forest Guardians v.
`Johanns, 450 F.3d 455, 461 (9th Cir. 2006) (citations omitted). “An action is moot if it has lost its
`character as a present, live controversy.” Id. (citing Am. Rivers v. Nat’l Marine Fisheries Serv.,
`126 F.3d 1118, 1123 (9th Cir. 1997)) (quotations omitted). A dispute is live when the parties
`maintain “a personal stake in the outcome of the lawsuit.” Maldonado v. Lynch, 786 F.3d 1155,
`1160-61 (9th Cir. 2015) (quoting Lewis v. Cont’l Bank Corp., 494 U.S. 472, 478 (1990))
`(quotations omitted). A case can “become moot” when “an opposing party has agreed to
`everything the other party has demanded.” GCB Commc’ns, Inc. v. U.S. S. Commc’ns, Inc., 650
`F.3d 1257, 1267 (9th Cir. 2011) (citations omitted). The Supreme Court has stated that mootness
`“can be described as the doctrine of standing set in a time frame.” Friends of the Earth, Inc. v.
`Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (citations and quotations omitted).
`The party raising a mootness challenge, in this case Apple, carries the “heavy” burden of showing
`that the court can grant “no effective relief.” See Forest Guardians, 450 F.3d at 461 (citations
`omitted).
`Case No.: 5:18-cv-02813-EJD
`ORDER DENYING DEFENDANT’S MOTION TO DISMISS
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`Prudential mootness is a doctrine that “permits a court to dismiss an appeal not technically
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`moot if circumstances have changed since the beginning of litigation that forestall any occasion
`for meaningful relief.” J.F. v. New Haven Unified Sch. Dist., 2014 WL 6485643, at *4 (N.D. Cal.
`Nov. 19, 2014) (citing Deutsche Bank. Nat. Trust. Co. v. F.D.I.C., 744 F.3d 1124, 1135 (9th Cir.
`2014)) (citation and quotations omitted). However, the Ninth Circuit has not adopted the
`prudential mootness doctrine “per se.” Maldonado, 786 F.3d at 1161 n.5 (citing Hunt v. Imperial
`Merch. Servs., Inc., 560 F.3d 1137, 1142 (9th Cir. 2009)). The Ninth Circuit has “applied
`prudential mootness only in the bankruptcy context, when there are no assets left to distribute.”
`Maldonado, 786 F.3d at 1161 n.5 (citing Deutsche