Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 1 of 41
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`Keith T. Vernon *
`
`Andrew Knox *
`TIMONEY KNOX, LLP
`400 Maryland Ave, PO Box 7544
`Fort Washington, PA 19034-7544
`Tel: (215) 646-6000
`Fax: (215) 591-8258
`kvernon@timoneyknox.com
`aknox@timoneyknox.com
`
`
`
`Jonathan Shub (C.A. Bar No. 237708)
`Kevin Laukaitis *
`SHUB LAW FIRM LLC
`134 Kings Hwy. E., 2nd Floor
`Haddonfield, NJ 08033
`Tel: (856) 772-7200
`Fax: (856) 210-9088
`jshub@shublawyers.com
`klaukaitis@shublawyers.com
`
`Troy M. Frederick *
`Beth A. Frederick *
`FREDERICK LAW GROUP, PLLC
`836 Philadelphia Street
`Indiana, PA 15701
`Tel: (724) 801-8555
`Fax: (724) 801-8358
`tmf@fredericklg.com
`baf@fredericklg.com
`
`Attorneys for Plaintiff and the Proposed Class
`*Pro Hac Vice Application Forthcoming
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`MATTHEW PRICE, individually and on
`behalf of all others similarly situated,
`
`
`Plaintiff,
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` v.
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`APPLE, INC., a California corporation,
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`Defendant.
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`
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`Case No.:
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`1697079-1
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 2 of 41
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`Plaintiff, Matthew Price, by and through his undersigned counsel, Shub Law Firm LLC,
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`Frederick Law Group, PLLC, and Timoney Knox, LLP, on behalf of himself and all others
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`similarly situated, brings this Class Action Complaint against Apple, Inc. (hereinafter “Apple” or
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`“Defendant”), and alleges as follows upon personal knowledge as to himself and his own acts and
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`experiences and, as to all other matters, alleges, upon information and belief based upon, inter
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`alia, investigations conducted by his attorneys:
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`NATURE OF THE CASE
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`1.
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`This is a class action lawsuit brought by Plaintiff, Matthew Price, individually and
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`on behalf of Classes of consumers against Apple.
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`2.
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`Plaintiff and Class Members each had an Apple ID and/or purchased, “Apps”1
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`and/or “Content” including movies, music, games, media, books, and/or made in-app purchases
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`of “Content” and/or “Services” 2 (collectively “Content”) through the use of an Apple ID3 via
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`either an Apple device, such as an iPhone, iPad, Mac, Apple Watch, and/or Apple TV, and/or a
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`non-Apple manufactured device.
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`3.
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`Apple designs, manufactures, and markets smartphones, personal computers,
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`tablets, watches, and accessories, and sells, or otherwise makes available, related Content.
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`
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`1 The Apple Media Service Terms and Conditions last updated September 16, 2020,attached hereto
`as “Exhibit A,” states that the term “App” “includes apps and app clips for any Apple platform
`and/or operating system, including any in-app purchases, extensions (such as keyboards),
`stickers, and subscriptions made available in such apps or app clips.”
`2 “This Agreement governs your use of Apple’s services (“Services”), through which you can buy,
`get, license, rent or subscribe to content, Apps [], and other in-app services (collectively,
`“Content”). Content may be offered through the Services by Apple or a third party.” (See
`“Exhibit A”).
`3 “An Apple ID is the account you use across Apple’s ecosystem.” (See “Exhibit A”). It consists
`of an email address and a password to log-in to access Content.
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 3 of 41
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`4.
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`Apple consumers who want to obtain Content, iCloud storage, or make in-app
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`purchases must do so through Apple, using an Apple ID. Apple consumers must create an Apple
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`ID and register a valid method of payment to make payments to Apple for any purchases made
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`through Apple. Even free Apps, content, and services obtained through Apple require an Apple
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`ID and valid method of payment. The following is a snip from Apple’s website that further
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`explains this process:4
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`4 https://support.apple.com/en-us/HT202631
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 4 of 41
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`5.
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`As part of the related content and services that it sells, Apple operates various
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`platforms, including its App Store. The App Store is a digital distribution platform, developed
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`and maintained by Apple, for mobile applications (“Apps”) on its iOS & iPadOS operating
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`systems. The App Store allows consumers to browse, download, and/or purchase Apps developed
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`with Apple’s iOS Software Development Kit. Apps can be downloaded on the devices that Apple
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`manufactures and sells, such as iPhones, iPads, Macs, Apple Watches, and/or Apple TVs.
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`6.
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`To purchase and/or access services, Apps, and/or Content through Apple, one must
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`do so using an Apple ID. The following are snips from Apple’s website which describe the
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`importance of an Apple ID5:
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`5 https://support.apple.com/en-us/HT202659
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 5 of 41
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`7.
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`Apple acknowledges, in its Apple Media Services Terms and Conditions (attached
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`hereto as Exhibit “A”), that “[u]sing our Services and accessing your Content may require an
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`Apple ID. An Apple ID is the account you use across Apple’s ecosystem. Use of Game Center
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`is subject to this Agreement and also requires a Game Center account. Your account is valuable,
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`and you are responsible for maintaining its confidentiality and security.” (Emphasis added)
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`Exhibit A.
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`8.
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`Without an operable Apple ID, not only can one not access the Content they have
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`already purchased but the functionality of any related Apple Devices is vastly diminished.
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`9.
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`As such, Apple is correct that its customers’ Apple ID accounts are valuable.
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`10.
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`Plaintiff has expended $24,590.05 for purchased Content, consisting of related
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`services, Apps, and Content, including in-App purchases, programs and platform extensions,
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`accessible only through the use of the Apple ID.
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`11.
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`Despite knowing and publicly acknowledging that its customers’ accounts are
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`“valuable,” Apple has included an unlawful, unconscionable clause in its Apple Media Services
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 6 of 41
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`Terms and Conditions which permits Apple to, unilaterally, without adequate notice, discernable
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`process or explanation, permanently terminate its customers’ Apple IDs and preclude access to
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`the services and Content its customers have already purchased.
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`12.
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`Further, Apple may do so based merely on Apple’s suspicion that they breached
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`its Terms and Conditions. Id. Apple’s unlawful and unconscionable clause states:
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`TERMINATION AND SUSPENSION OF SERVICES
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`If you fail, or Apple suspects that you have failed, to comply with
`any of the provisions of this Agreement, Apple may, without notice
`to you: (i) terminate this Agreement and/or your Apple ID, and
`you will remain liable for all amounts due under your Apple ID up
`to and including the date of termination; and/or (ii) terminate your
`license to the software; and/or (iii) preclude your access to the
`Services.
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`Apple further reserves the right to modify, suspend, or discontinue
`the Services (or any part or Content thereof) at any time with or
`without notice to you, and Apple will not be liable to you or to any
`third party should it exercise such rights.
`(Emphasis added)
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`13.
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`Apple’s unlawful and unconscionable clause acts as a prohibited de facto
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`liquidated damages provision which is triggered when Apple suspects its customers have
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`breached its Terms and Conditions. In the event of a suspected breach, Apple permanently
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`terminates its offending customers’ Apple IDs, thus depriving them of all the Content they
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`purchased through Apple.
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`14.
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`Additionally, for those Apple customers who have purchased Apple devices, such
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`as iPhones, iPads, Macs, Apple Watches, and/or Apple TVs, those devices have been substantially
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`diminished in value because they cannot be used to access the services and Content they
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`purchased through Apple.
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 7 of 41
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`15.
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`Apple permits the customers whom it suspects breached its Terms and Conditions
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`to immediately create new Apple IDs so they can repurchase all the services and Content they
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`already purchased and owned.
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`16.
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`The following
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`is a small sampling of complaints regarding Apple’s
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`unconscionable practices:
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`(Emphasis added) https://discussions.apple.com/thread/251251421
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 8 of 41
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`(Emphasis added) https://discussions.apple.com/thread/250752046
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 9 of 41
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`(Emphasis added) https://discussions.apple.com/thread/3660791
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`(Emphasis added) Id.
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 10 of 41
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`(Emphasis added)
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`https://www.reddit.com/r/applehelp/comments/cpukmf/apple_id_disabled_again/
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 11 of 41
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`(Emphasis added)
`https://www.reddit.com/r/apple/comments/hz8eko/your_account_has_been_disabled_in_the_ap
`p_store/
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`17.
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`To make matters worse, when Apple terminates customers’ Apple IDs, Apple also
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`prevents these customers from accessing unused funds they may have stored in their Apple
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`Accounts.
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`18.
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`Upon information and belief, Apple has sold over 1.5 billion active Apple devices,
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`and the vast majority of these devices are associated with an Apple ID.6 As such, the owners of
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`these Apple devices have either already been or are at risk of falling victim to Apple’s unlawful
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`practices as set forth herein.
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`6 https://9to5mac.com/2020/01/28/apple-hits-1-5-billion-active-devices-with-80-of-recent-
`iphones-and-ipads-running-ios-13/ (last accessed on March 17, 2021).
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 12 of 41
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`19.
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`Defendant’s conduct is unfair, unlawful, fraudulent, and illegal. As such,
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`Defendant’s practices violate Cal. Civ. Code § 1671(d), California’s Consumer Legal Remedies
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`Act, Cal. Civ. Code § 1750 et seq. (“CLRA”), California’s Unfair Competition Law, Cal. Bus. &
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`Prof. Code § 17200 et seq. (“UCL”), and California’s False Advertising Law, Cal. Bus. & Prof.
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`Code § 17500 et seq. (“FAL”). Plaintiff also brings claims for Conversion, Trespass to Chattels,
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`and Unjust Enrichment.
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`JURISDICTION AND VENUE
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`20.
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`This Court has subject matter jurisdiction pursuant to the Class Action Fairness
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`Act of 2005 (“CAFA”), 28 U.S.C. § 1332(d). The amount in controversy exceeds the aggregate
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`sum of $5,000,000 exclusive of interest and costs, there are over 100 putative class members, and
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`minimal diversity exists because at least one member of the Class is a citizen of a different state
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`than Defendant.
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`21.
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`This Court has personal jurisdiction over Defendant because it is authorized to and
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`regularly conducts business in California and its principal place of business is in California.
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`22.
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`Venue is proper in this District under 28 U.S.C. § 1391(b)(2) because Defendant
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`resides in this District and a substantial part of the events or omissions giving rise to Plaintiff’s
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`claims occurred in this District.
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`INTRADISTRICT ASSIGNMENT
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`23.
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`Pursuant to Civil Local Rule 3-2(c-e), a substantial part of the events giving rise
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`to the claims herein arose in Santa Clara County, California, and this action should be assigned
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`to the San Jose Division.
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`THE PARTIES
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 13 of 41
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`24.
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`Plaintiff, Matthew Price, is an adult citizen and resident of Pennsylvania, residing
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`in Cambria County, Pennsylvania.
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`25.
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`Defendant Apple is a California corporation with its headquarters and principal
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`place of business in Cupertino, California, which lies within this District. Apple is a citizen of
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`California. In addition to being headquartered and having its principal place of business in
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`Cupertino, California, Apple transacts substantial business throughout the State of California,
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`through advertising, marketing, and ownership of numerous Apple retail stores throughout
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`California, including several in this District. Further, substantially all of the misconduct alleged
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`in this Complaint occurred in and/or emanated from this district in California.
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`FACTS
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`26.
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`At all times relevant hereto, Mr. Price has owned an iPhone, iPad, and MacBook
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`Pro. Since January 8, 2015, he has purchased $24,590.05 in Services and Content through Apple,
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`using a single Apple ID, for use on his Apple devices.
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`27.
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`At all times relevant hereto, Mr. Price had an Apple ID and was subject to Apple’s
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`Terms and Conditions.
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`28.
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`On or around October 29, 2020, Apple determined that Mr. Price breached its
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`Terms and Conditions and, without notice, explanation, policy or process, terminated Mr. Price’s
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`Apple ID which has deprived him of the $24,590.05 of services and Content he purchased through
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`Apple.
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`29. Mr. Price also had $7.63 of unspent funds in his Apple account when Apple
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`terminated his Apple ID. Now, Mr. Price can no longer access or spend those funds. The following
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`is a screen shot of Mr. Price’s Apple Account Balance.7
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`7 Screen Shot taken on April 6, 2021.
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 14 of 41
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`30.
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`Prior to the time that Apple terminated Mr. Price’s Apple ID, he specifically
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`purchased an Apple device, an iPad Pro, to maximize the Services and/or Content he purchased
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`with his Apple ID and upon the termination of his Apple ID, the value and usefulness of the
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`device Mr. Price purchased was significantly diminished.
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`31.
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`Apple has collected significant revenues from terminating Plaintiff’s and the
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`Class’s Apple IDs.
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`32.
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`If and to the extent that Apple suffers, would suffer, or has suffered any damage
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`upon the breach of its Terms and Conditions by Plaintiff and the Class, it is neither impracticable
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`nor extremely difficult to determine the actual damages.
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 15 of 41
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`33.
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`Furthermore, if and to the extent that Apple suffers, would suffer, or has suffered
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`any damage upon the breach of its Terms and Conditions by Plaintiff and the Class, the value of
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`Plaintiff’s and the Class’s Apple IDs are not a reasonable measure or approximation of such
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`damages and do not provide fair average compensation therefore.
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`34.
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`Depriving Plaintiff and the Class of the value of their Apple IDs, under the
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`circumstances existing at the time when Plaintiff and the Class agreed to the Terms and
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`Conditions, was unreasonable.
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`35.
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`Upon information and belief, Apple does not conduct a reasonable endeavor to fix
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`fair average compensation for losses, if any, that it incurs, would incur, or has incurred by virtue
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`of any breach of its Terms and Conditions.
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`36.
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`Further, termination of their Apple IDs upon any breach of Apple’s Terms and
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`Conditions was not negotiated or discussed with Plaintiff or the Class at any time relevant hereto.
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`37.
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`Apple’s termination of Plaintiff’s and the Class’s Apple IDs is unconscionable,
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`void, and unenforceable under Civil Code §§ 1670.5, 1671(b), and/or 1671(d), constitutes an
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`unlawful, unfair, and deceptive practice under the UCL, and violates the CLRA, including without
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`limitation Cal. Civil Code §§ 1770(a)(4), (a)(9), (a)(14), (a)(16) and (a)(19).
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`38.
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`Accordingly, Plaintiff, on behalf of himself and all others similarly situated, seeks
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`to enjoin Apple from continuing its unlawful conduct, as set forth herein, and seeks to recover
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`money paid to and through Apple for Apps, music, movies, TV shows, books, Services and/or
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`other Content they purchased but were prohibited from accessing when Apple unlawfully
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`terminated their Apple IDs.
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 16 of 41
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`CLASS ACTION ALLEGATIONS
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`39.
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`Pursuant to the provisions of Federal Rules of Civil Procedure 23(a), (b), and (c),
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`Plaintiff brings this action on behalf of himself and the following Nationwide Class (the
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`“Nationwide Class”):
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`All persons in the United States who own an Apple device and/or who had an
`Apple ID who had their account terminated pursuant to the Termination and
`Suspension of Service provision in the Apple Media Services Terms and
`Conditions.
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`Pursuant to the provisions of Federal Rules of Civil Procedure 23(a), (b), and (c),
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`40.
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`Plaintiff brings this action on behalf of himself and the following Subclass (the “Subclass”):
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`All persons in the United States who own an Apple device and/or who had an
`Apple ID who had their account terminated pursuant to the Termination and
`Suspension of Service provision in the Apple Media Services Terms and
`Conditions and whose Account carried a positive balance at the time Apple
`terminated the Account.
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`The Nationwide Class and Subclass are referred to collectively herein as the
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`41.
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`“Classes.”
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`42.
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`Excluded from the Classes are Apple itself, any entity in which Apple has
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`controlling interests, and Apple’s officers, directors, legal representatives, successors,
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`subsidiaries, and assigns; and any judicial officer presiding over this matter, members of their
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`immediate family, members of their judicial staff, and any judge sitting in the presiding court
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`system who may hear an appeal of any judgment entered.
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`43.
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`Certification of Plaintiff’s claims for classwide treatment is appropriate because
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`Plaintiff can prove the elements of his claims on a classwide basis using the same evidence as
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`would be used to prove those elements in individual actions asserting the same claims.
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`44.
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`This action has been brought and may be properly maintained on behalf of the
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`Classes proposed herein under Rule 23 of the Federal Rule of Civil Procedure and satisfies the
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`numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of
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`its provisions.
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`45.
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`Plaintiff reserves the right to amend the Class and/or Subclass definitions based
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`on information learned through discovery.
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`46.
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`Numerosity - Fed. R. Civ. P. 23(a)(1): Consistent with Rule 23(a)(1), the
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`members of the Classes are so numerous and geographically dispersed that the joinder of all
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`members is impractical. While the exact number of Class Members and Subclass Members
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`(collectively, “Class Members”) is unknown to Plaintiff at this time, there are hundreds of
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`thousands of Apple customers who have, or have had, an Apple ID, who owned an Apple
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`Device(s), and/or who had Apple terminate their Apple IDs during the class period and/or have
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`been prevented from accessing any unused money in their Apple Accounts. The members of the
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`Classes can be readily identified through Apple’s records.
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`47.
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`Commonality and Predominance - Fed. R. Civ. P. 23(a)(2) and (b)(3): This
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`action involves common questions of law and fact that predominate over any questions affecting
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`individual Class Members. The common questions include, but are not limited to:
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`a. Whether Defendant engaged in the conduct alleged herein;
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`b. Whether Defendant included an unconscionable clause in its Terms and
`Conditions;
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`c. Whether Defendant included a prohibited de facto liquidated damages
`clause in its Terms and Conditions;
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`d. Whether Defendant committed trespass to chattels when it terminated its
`customers’ Apple IDs;
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`e. Whether Defendant unlawfully converted Plaintiff’s and the Classes’
`property when it terminated their Apple IDs;
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`f. Whether Defendant’s practice of terminating Plaintiff’s and the Classes’
`Apple IDs is unconscionable;
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`g. Whether Defendant’s practice of terminating Plaintiff’s and the Classes’
`Apple IDs violates the UCL;
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`h. Whether Defendant’s practice of terminating Plaintiff’s and the Classes’
`Apple IDs violates the CLRA;
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`i. Whether Defendant’s practice of terminating Plaintiff’s and the Classes’
`Apple IDs violates the FAL;
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`j. Whether Plaintiff and the Classes are entitled to restitution of the value of
`their Apple IDs after Apple terminated them;
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`k. Whether Plaintiff and the Classes are entitled to an award of reasonable
`attorneys’ fees, pre-judgment interest, and costs of this suit;
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`l. Whether Defendant should be enjoined from terminating its customers’
`Apple IDs.
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`m. Whether Defendant violated Cal. Civ. Code § 1671(d);
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`n. Whether Plaintiff and the Classes are entitled to recover monetary damages
`for the services and Content they paid for and lost access to when
`Defendant terminated their Apple IDs;
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`o. Whether the value of Plaintiff’s and the Classes’ Apple devices was
`diminished when Apple terminated their Apple IDs;
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`p. Whether Plaintiff and the Classes are entitled to recover monetary damages
`for the diminished value of their Apple devices when Apple terminated
`their Apple IDs;
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`q. Whether Plaintiff and the Classes have sustained financial loss and the
`proper measure of any such financial loss;
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`r. Whether Plaintiff and the Classes are entitled to damages, and the proper
`measure of any such damages;
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`s. Whether Defendant has been unjustly enriched at the expense of Plaintiff
`and the Classes;
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`u.
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`t. Whether Plaintiff and the Classes are entitled to injunctive relief; and
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`Such other common factual and legal issues as are apparent from the
`allegations and causes of action asserted in this Complaint.
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`Typicality - Fed. R. Civ. P. 23(a)(3): Plaintiff’s claims are typical of other Class
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`48.
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`members’ claims because Plaintiff and Class Members were, or may be, subjected to the same
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`allegedly unlawful conduct and were, or may be, damaged in the same way, i.e., they all lost the
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`value of their Apple accounts when Apple terminated their Apple IDs or are risk of the same.
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`49.
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`Adequacy - Fed. R. Civ. P. 23(a)(4): Consistent with Rule 23(a)(4), Plaintiff will
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`fairly and adequately represent the Classes. Plaintiff has the best interests of the members of the
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`Classes in mind. Plaintiff has no conflicts of interest with the Classes. Plaintiff’s counsel are
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`competent and experienced in litigating class actions, including extensive experience in consumer
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`protection claims. Plaintiff intends to vigorously prosecute this case.
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`50.
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`Superiority - Fed. R. Civ. P. 23(b)(3): A class action is superior to other available
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`methods for the fair and efficient adjudication of these claims because individual joinder of the
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`claims of all members of the Classes is impracticable. Many members of the Classes are without
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`the financial resources necessary to pursue this matter. Even if some could afford to litigate
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`claims separately, such a result would be unduly burdensome to the courts in which the
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`individualized cases would proceed. Individual litigation increases the time and expense of
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`resolving a common dispute concerning Defendant’s actions toward an entire group of individuals.
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`Class action procedures allow for far fewer management difficulties in matters of this type and
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`provide the unique benefits of unitary adjudication, economies of scale, and comprehensive
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`supervision over the entire controversy by a single judge in a single court.
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 20 of 41
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`51.
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`The Classes may be certified pursuant to F.R.C.P. 23(b)(2) because Defendant has
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`acted on grounds generally applicable to the Classes, thereby making final injunctive relief and
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`corresponding declaratory relief appropriate with respect to the claims raised by the Classes.
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`52.
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`The Classes may also be certified pursuant to F.R.C.P. 23 (b)(3) because questions
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`of law and fact common to members of the Classes will predominate over questions affecting
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`individual members, and a class action is superior to other methods for fairly and efficiently
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`adjudicating the controversy and causes of action described in this Complaint.
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`53.
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`54.
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`The claims asserted herein are applicable to Plaintiff and members of the Classes.
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`Adequate notice can be given to Class Members directly using information
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`maintained in Defendant’s records or, if necessary, through notice by publication.
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`55.
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`Damages may be calculated from the data maintained in Defendant’s records, so
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`that the cost of administering a recovery for the Classes can be minimized.
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`CAUSES OF ACTION
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`COUNT I
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`Violations of Cal. Civ. Code § 1671(d)
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`56.
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`Plaintiff hereby incorporates the foregoing paragraphs as though the same were
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`set forth herein in their entirety.
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`57.
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`Plaintiff brings this claim individually and on behalf of the members of the Classes
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`against Apple.
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`58.
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`Civil Code § 1671(d) states that a contractual provision, in a contract for the retail
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`purchase or rental of personal property or services primarily for the party’s personal, family, or
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`household purposes, liquidating damages for the breach of the contract, is void except that the
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`parties to such a contract may agree therein on an amount that shall be presumed to be the amount
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 21 of 41
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`of the damage sustained by a breach thereof, when, from the nature of the clause, it would be
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`impracticable or extremely difficult to fix that actual damage. Apple’s Terms and Conditions is
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`a contract for the purchase of services primarily for personal, family, or household use by Plaintiff
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`and the Class.
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`59.
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`Once Apple determined that Plaintiff and the Class Members breached its Terms
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`and Conditions, Apple’s termination of their Apple IDs constitutes an impermissible liquidated
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`damages provision under California law.
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`60.
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`Here, Apple’s termination of Plaintiff’s Apple ID resulted in damages of
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`$24,590.05 to Plaintiff.
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`61.
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`The subject liquidated damages clause states:
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` TERMINATION AND SUSPENSION OF SERVICES
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`If you fail, or Apple suspects that you have failed, to comply with
`any of the provisions of this Agreement, Apple may, without
`notice to you: (i) terminate this Agreement and/or your Apple
`ID, and you will remain liable for all amounts due under your
`Apple ID up to and including the date of termination; and/or (ii)
`terminate your license to the software; and/or (iii) preclude your
`access to the Services.
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`Apple further reserves the right to modify, suspend, or discontinue
`the Services (or any part or Content thereof) at any time with or
`without notice to you, and Apple will not be liable to you or to any
`third party should it exercise such rights.
`(Emphasis added).
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`62. While Apple does not identify this clause in its Terms and Conditions as a
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`liquidated damages provision, it nonetheless operates as such a provision.
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`63.
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`The clause at issue is a liquidated damages clause because, while it does not state
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`a fixed and certain amount, it provides a formula by which the amount is certain or readily
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`ascertainable.
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 22 of 41
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`64.
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`Here, the amount is certain and/or readily ascertainable because the amount of the
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`liquidated damages is the value of the breaching customer’s Apple ID when Apple terminates it.
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`While the value of each customer’s Apple ID may vary, the value of the account when Apple
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`terminates the Apple ID is the liquidated damage.
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`65.
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`The termination of Plaintiff’s and the Classes’ Apple IDs, the contractual
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`provisions that provide for them, and the imposition of the same by Apple - violate Civil Code §
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`1671(d) and are unlawful, void, and unenforceable under that statute.
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`66.
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`If and to the extent that Apple suffers, would suffer, or has suffered any damages
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`due to the breach of its Terms and Conditions by Plaintiff or members of the Classes, it would
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`not be impracticable, nor would it be difficult, to determine them with certainty.
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`67.
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`Furthermore, the liquidated damages, provided for in the Terms and Conditions,
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`do not reflect a reasonable endeavor by Apple to fix fair average compensation for any harm that
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`Apple would suffer, may suffer, or has suffered, if any, from said breaches.
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`68.
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`The Terms and Conditions is a contract of adhesion drafted by Apple and
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`presented to its customers on a “take it or leave it” basis with no opportunity for any prospective
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`customer to negotiate any of its provisions.
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`69.
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`The provision in the Terms and Conditions that permits Apple to terminate its
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`customers’ Apple IDs is a liquidated damages provision that fails to comply with the standards
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`set forth in Civil Code § 1671(d), and therefore constitutes impermissible contractual penalties.
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`70.
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`Apple’s termination of Plaintiff’s and the Classes’ Apple IDs violates, and at all
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`times relevant hereto, has violated, Civil Code § 1671(d).
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`71.
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`Plaintiff and the Classes have suffered an injury in fact resulting in the loss of
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`money and/or property, i.e. the services and Content accessible only through their Apple IDs – or
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`Case 5:21-cv-02846 Document 1 Filed 04/20/21 Page 23 of 41
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`the value thereof, and the Apple account balance, as a proximate result of Apple’s violations of
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`law and wrongful conduct alleged herein.
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`72.
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`Pursuant to Civil Code § 1671(d), Plaintiff individually and on behalf of the
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`Classes, seeks an order of this Court preliminarily and permanently enjoining Apple from
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`terminating Apple IDs for breach of its Terms and Conditions as alleged herein.
`
`73.
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`Plaintiff also seeks, inter alia, an order