Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 1 of 22
`
`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Sean L. Litteral (State Bar No. 331985)
`Elvia M. Lopez (State Bar No. 331986)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: ltfisher@bursor.com
` slitteral@bursor.com
` elopez@bursor.com
`
`
`MIGLIACCIO & RATHOD LLP
`Nicholas A. Migliaccio (pro hac vice)
`Jason S. Rathod (pro hac vice)
`412 H St., NE
`Washington. D.C. 20002
`Telephone: (202) 470-3520
`Facsimile: (202) 800-2730
`E-Mail: nmigliaccio@classlawdc.com
` jrathod@classlawdc.com
`
`
`Attorneys for Plaintiffs
`
`
`v.
`
`Plaintiffs,
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`DANIEL FRIEND, DAPHNE PAREAS, SCOTT
`SEVELAND, PATRICE SHERMAN, NESTOR
`ALMEIDA, ADELINA LAVECCHIA, DAN
`HENDERSON, MARITZA ANGELES, TIM
`INSELMANN, MAGDALA CASIMIR,
`WILLIAM WEST-DAVIS, PATRICIA
`MEDBERRY, and AZARA COLINDREZ,
`individually and on behalf of all others similarly
`situated,
`
`
`
`
`APPLE INC.,
`
`
`
`
`
`
` Defendant.
`
`
`
`Case No. 3:21-cv-07109-VC
`
`PLAINTIFFS’ OPPOSITION TO
`DEFENDANT’S MOTION TO DISMISS
`PLAINTIFFS’ SECOND AMENDED
`CONSOLIDATED CLASS ACTION
`COMPLAINT
`
`Date: January 12, 2023
`Time: 10:00 a.m.
`Dept: Courtroom 4 – 17th floor
`Judge: Hon. Vince Chhabria
`
`
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 2 of 22
`
`TABLE OF CONTENTS
`
`PAGE(S)
`
`
`
`
`I. 
`II. 
`
`III. 
`
`B. 
`
`b. 
`
`2. 
`
`INTRODUCTION ................................................................................................................. 1 
`DISCUSSION ........................................................................................................................ 2 
`A. 
`Plaintiffs Adequately Allege Their Fraud-Based Claims .......................................... 2 
`Plaintiffs Plausibly Allege Pre-Sale Knowledge of the
`1. 
`Defect ............................................................................................................. 2 
`Plaintiffs’ pre-release testing allegations raise a
`a. 
`plausible inference of pre-sale knowledge ......................................... 2 
`Plaintiffs’ other allegations bolster the inference of
`pre-sale knowledge ............................................................................ 4 
`Plaintiffs Plausibly Allege Facts Establishing a Duty to
`Disclose .......................................................................................................... 9 
`a. 
`Exclusive Knowledge ........................................................................ 9 
`b. 
`Active Concealment ......................................................................... 10 
`c. 
`Partial Representations..................................................................... 11 
`Plaintiffs Adequately Allege Their Negligent Misrepresentation
`Claims ...................................................................................................................... 13 
`Plaintiffs Adequately Allege Their Quasi-Contract Claims .................................... 14 
`C. 
`Plaintiffs Adequately Allege Their Claims For Equitable Relief ............................ 14 
`D. 
`CONCLUSION .................................................................................................................... 15 
`
`i
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 3 of 22
`
`TABLE OF AUTHORITIES
`
`PAGE(S)
`
`CASES 
`
`Anderson v. Apple Inc.,
`500 F. Supp. 3d 993 (N.D. Cal. 2020) ................................................................................ 13, 15
`
`Beyer v. Symantec Corp.,
`333 F. Supp. 3d 966 (N.D. Cal. 2018) ........................................................................................ 9
`
`Blissard v. FCA US LLC,
`2018 WL 6177295 (C.D. Cal. Nov. 9, 2018) ............................................................................ 11
`
`Borkman v. BMW of N. Am., LLC,
`2017 WL 4082420 (C.D. Cal. Aug. 28, 2017) .......................................................................... 11
`
`Browning v. Am. Honda Motor Co.,
`2022 WL 824106 (N.D. Cal. Mar. 18, 2022) ...................................................................... 10, 11
`
`Burdt v. Whirlpool Corp.,
`2015 WL 4647929 (N.D. Cal. Aug. 5, 2015) ............................................................................. 4
`
`Coleman v. Mondelez Int’l Inc.,
`554 F. Supp. 3d 1055 (C.D. Cal. 2021) .................................................................................... 15
`
`Cutler v. Rancher Energy Corp.,
`2014 WL 1153054 (C.D. Cal. Mar. 11, 2014) .......................................................................... 13
`
`Davidson v. Apple, Inc.,
`2017 WL 3149305 (N.D. Cal. July 25, 2017) ....................................................................... 4, 11
`
`Donohue v. Apple, Inc.,
`871 F. Supp. 2d 913 (N.D. Cal. 2012) ...................................................................................... 10
`
`Elgindy v. AGA Serv. Co.,
`2021 WL 1176535 (N.D. Cal. Mar. 29, 2021) .......................................................................... 15
`
`Falk v. Gen. Motors Corp.,
`496 F. Supp. 2d 1088 (N.D. Cal. 2007) ...................................................................................... 9
`
`Finney v. Ford Motor Co.,
`2018 WL 2552266 (N.D. Cal. June 4, 2018) ............................................................................ 12
`
`Flier v. FCA US LLC,
`2022 WL 16823042 (N.D. Cal. Nov. 8, 2022) ................................................................... 2, 4, 9
`
`Goldstein v. Gen. Motors LLC,
`517 F. Supp. 3d 1076 (S.D. Cal. 2021) ................................................................................. 9, 11
`
`ii
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 4 of 22
`
`Herron v. Best Buy Co. Inc.,
`924 F. Supp. 2d 1161 (E.D. Cal. 2013)..................................................................................... 13
`
`In re Chrysler-Dodge-Jeep Ecodiesel Mktg., Sales Pracs., & Prod. Liab. Litig.,
`295 F. Supp. 3d 927 (N.D. Cal. 2018) ...................................................................................... 12
`
`In re MacBook Keyboard Litig.,
`2019 WL 1765817 (N.D. Cal. Apr. 22, 2019) ...................................................................... 9, 10
`
`In re MyFord Touch Consumer Litig.,
`46 F. Supp. 3d 936 (N.D. Cal. 2014) .......................................................................................... 8
`
`In Re Samsung Galaxy Smartphone Mktg. & Sales Pracs. Litig.,
`2020 WL 7664461 (N.D. Cal. Dec. 24, 2020) .......................................................................... 12
`
`In re Seagate Tech. LLC Litig.,
`233 F. Supp. 3d 776 (N.D. Cal. 2017) .................................................................................... 3, 4
`
`In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs., & Prod. Liab. Litig.,
`754 F. Supp. 2d 1145 (C.D. Cal. 2010) .................................................................................... 11
`
`In re Toyota RAV4 Hybrid Fuel Tank Litig.,
`534 F. Supp. 3d 1067 (N.D. Cal. 2021) ...................................................................................... 6
`
`JB Bros., Inc v. Poke Bar Ga Johns Creek I, LLC,
`2022 WL 3012822 (C.D. Cal. June 6, 2022) ............................................................................ 14
`
`Jeong v. Nexo Fin. LLC,
`2022 WL 174236 (N.D. Cal. Jan. 19, 2022) ............................................................................. 15
`
`Ketayi v. Health Enrollment Grp.,
`516 F. Supp. 3d 1092 (S.D. Cal. 2021) ..................................................................................... 14
`
`Lassen v. Nissan N. Am., Inc.,
`211 F. Supp. 3d 1267 (C.D. Cal. 2016) .................................................................................... 10
`
`LeBrun v. CBS Television Studios, Inc.,
`68 Cal. App. 5th 199 (2021) ..................................................................................................... 14
`
`Lusson v. Apple, Inc.,
`2016 WL 10932723 (N.D. Cal. June 20, 2016) ........................................................................ 14
`
`Morgan v. AT&T Wireless Servs., Inc.,
`177 Cal. App. 4th 1235 (2009) ................................................................................................... 9
`
`Nacarino v. Chobani, LLC,
`2021 WL 3487117 (N.D. Cal. Aug. 9, 2021) ........................................................................... 15
`
`Obertman v. Electrolux Home Care Prod., Inc.,
`482 F. Supp. 3d 1017 (E.D. Cal. 2020)..................................................................................... 14
`
`iii
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 5 of 22
`
`OCM Principal Opportunities Fund, L.P. v. CIBC World Markets Corp.,
`157 Cal. App. 4th 835 (2007) ................................................................................................... 14
`
`Parrish v. Volkswagen Grp. of Am., Inc.,
`463 F. Supp. 3d 1043 (C.D. Cal. 2020) ...................................................................................... 5
`
`Patt v. Antech Diagnostics, Inc.,
`2020 WL 5076970 (C.D. Cal. May 18, 2020) .......................................................................... 12
`
`Patterson v. RW Direct, Inc.,
`2018 WL 6106379 (N.D. Cal. Nov. 21, 2018) ........................................................................... 6
`
`Patterson v. RW Direct, Inc.,
`382 F. Supp. 3d 938 (N.D. Cal. 2019) ........................................................................................ 6
`
`Phan v. Sargento Foods, Inc.,
`2021 WL 2224260 (N.D. Cal. June 2, 2021) ............................................................................ 15
`
`Punian v. Gillette Co.,
`2016 WL 1029607 (N.D. Cal. Mar. 15, 2016) .......................................................................... 12
`
`Rice v. Kimberly-Clark Corp.,
`2022 WL 16804522 (E.D. Cal. Nov. 8, 2022) ........................................................................ 5, 6
`
`Rushing v. Williams-Sonoma, Inc.,
`2017 WL 766678 (N.D. Cal. Feb. 28, 2017) ............................................................................ 10
`
`Sinatro v. Barilla Am., Inc.,
`2022 WL 10128276 (N.D. Cal. Oct. 17, 2022)......................................................................... 15
`
`Taleshpour v. Apple Inc.,
`2021 WL 1197494 (N.D. Cal. Mar. 30, 2021) ...................................................................... 4, 10
`
`Victorino v. FCA US LLC,
`2016 WL 6441518 (S.D. Cal. Nov. 1, 2016) ............................................................................ 14
`
`Weeks v. Google LLC,
`2018 WL 3933398 (N.D. Cal. Aug. 16, 2018) ........................................................................... 9
`
`Williams v. Gerber Prod. Co.,
`552 F.3d 934 (9th Cir. 2008) .................................................................................................... 12
`
`Williams v. Yamaha Motor Co.,
`851 F.3d 1015 (9th Cir. 2017) .................................................................................................... 5
`
`Wilson v. Hewlett-Packard Co.,
`668 F.3d 1136 (9th Cir. 2012) .................................................................................................... 6
`
`Yeomans v. World Fin. Grp. Ins. Agency, Inc.,
`2022 WL 844152 (N.D. Cal. Mar. 22, 2022) ............................................................................ 15
`
`iv
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 6 of 22
`
`Zakikhani v. Hyundai Motor Co.,
`2022 WL 1740034 (C.D. Cal. Jan. 25, 2022) ........................................................................... 11
`
` 
`
`v
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 7 of 22
`
`I.
`
`INTRODUCTION
`Defendant moves to dismiss the Second Amended Consolidated Complaint (“SACC”)
`and goes beyond the bounds of fair play to distort the facts and the law. Within the first two
`lines of its motion, Defendant argues that the SACC should be dismissed “for many of the same
`reasons that both of their prior complaints were dismissed.” Dkt. No. 60 (“Mot.”) at 1 (emphasis
`added). Defendant is well aware that the Court has dismissed only one complaint.
`Specifically, the Court dismissed Plaintiffs’ original complaint due to deficiencies related
`to the Defect, reliance, and equitable relief. Dkt. No. 40. In challenging Plaintiffs’ FACC,
`Defendant only maintained its arguments relating to the Defect, knowledge, and equitable relief.
`Dkt. No. 46 (“MTD II”). At the hearing, the Court indicated its position that “the complaint
`adequately plead[ed] a defect” and “adequately alleged that Apple knew about it.” Tr. 9:18-21,
`10:1-5. The Court noted that its previous order had not discussed knowledge of the defect “at the
`time that the plaintiffs bought the products.” Id. at 3:24-4:3. The Court stated that it otherwise
`“didn’t see any other major problems with the major questions about the complaint.” Id. at 10:1-
`5. As Plaintiffs had indicated that they could bolster their pre-sale knowledge allegations, the
`Court granted Plaintiffs leave to amend and denied Defendant’s motion as moot. Dkt. No. 57.
`On October 21, 2022, Plaintiffs filed the SACC. Dkt. No. 59. The SACC includes
`dozens of new allegations, including the following allegations overlooked by Defendant (as
`indicated in italics): (1) additional complaints pre-dating the Plaintiffs’ purchases, including on
`platforms that Apple employs representatives to monitor; (2) additional complaints reflecting
`Defendant’s practice of deleting and editing comments suggesting a design defect; (3) various
`pre-release mechanical tests that would have revealed the Defect, including torsion tests applied
`to the display itself, hinge tests, pressure tests, vibration tests, shock tests, and reliability-growth
`tests assessing the fragile M1 display components; (4) data showing that consumers have been
`seeking M1 replacement displays in mass numbers; (5) quality control measures undertaken on
`early returns and tracking repeat repairs; (6) various internal repositories of internal data,
`including targeted feedback from M1 product specific pages; and (7) employee responses
`indicating that Apple was aware of the defect, for which current repairs are ineffective.
`1
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 8 of 22
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`Defendant mischaracterizes the facts and the law to try to convince the Court that
`Plaintiffs’ allegations are deficient. But just as Plaintiffs have adequately alleged reliance and
`the Defect, Plaintiffs have also done so as to knowledge and equitable relief. Stripped of its ill-
`suited arguments, its inapposite cases, and distortions, Defendant’s motion to dismiss falls flat.
`II.
`DISCUSSION
`A. Plaintiffs Adequately Allege Their Fraud-Based Claims
`Defendant argues that Plaintiffs “fail to allege an actionable omission” because Plaintiffs
`purportedly fail to allege its knowledge and duty to disclose. Mot. at 5, 10. As Plaintiffs
`sufficiently allege each of these, the fraud claims (Counts 12-15) should survive. As Defendant
`did not otherwise challenge Plaintiffs’ consumer claims (Counts 1-11), those too should survive.
`1.
`Plaintiffs Plausibly Allege Pre-Sale Knowledge of the Defect
`Plaintiffs’ allegations raise a strong plausible inference of pre-sale knowledge. See Flier
`v. FCA US LLC, 2022 WL 16823042, at *4–5 (N.D. Cal. Nov. 8, 2022).
`a.
`Plaintiffs’ pre-release testing allegations raise a plausible
`inference of pre-sale knowledge
`To establish pre-sale knowledge from pre-release testing, Defendant previously argued
`that “Plaintiffs needed to identify relevant testing and facts establishing that such testing would
`have revealed the alleged defect.” MTD II at 11. Plaintiffs’ amended allegations do exactly this.
`See SACC ¶¶ 112-137. Plaintiffs now detail the range of mechanical “durability” and
`“reliability” pre-release tests conducted on the M1 MacBook and each of its components and
`describe how specific tests would have alerted Defendant to the Defect. See SACC ¶¶ 115-119,
`123-25, 129, 136.
`As to durability tests, Plaintiffs allege that three tests would have revealed the Defect: (1)
`“hinge tests, which involve repeatedly actuating the hinge to simulate a lifetime of opening and
`closing the laptop”; (2) “pressure tests,” which “test the durability of the enclosure, display,
`internal components, and connection between parts”; and (3) “torsion tests,” which “examine the
`structural integrity of the laptop and whether it can handle twists and torque in various
`situations,” including by testing “the torsion of the display itself to further simulate the torque the
`
`2
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 9 of 22
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`display is exposed to from normal use and that force singularly applied to the display does not
`cause display failures.” SACC ¶¶ 123-25 (showing photo of torsion testing in Defendant’s lab).
`As Plaintiffs allege, the “aluminum housing that supports the display must resist flex and
`torque, and the housing must be stiff enough to prevent any torque from being transferred to the
`display itself.” Id. ¶¶ 85, 89. Due to various design parameters focused on achieving the
`thinness of the M1 MacBook, the display is insufficiently supported and fragile and the Defect
`arises because the laptop is not strong enough to support the loads from normal use, including
`closing the laptop and adjusting the screen. See id. ¶¶ 81-91. With such normal use, torque is
`transferred to the display itself, which deforms and results in cracks, blotches, and/or dead areas.
`See id. Given the nature of the Defect, these durability tests “would have revealed the lack of
`stiffness of the aluminum housing, that the M1 displays are structurally weak, that the M1
`display deforms significantly, and that torque from normal use is unduly transferred to the thin,
`fragile layers of the display, which is insufficiently supported.” See id. ¶ 136.
`Further, Plaintiffs allege that Defendant employed “Reliability Engineers” that focused
`on testing the M1 displays, and Plaintiffs identify certain reliability pre-release tests that would
`have revealed the Defect, including “shock tests,” which involve “quickly accelerating and
`decelerating a laptop to impose a high g-force to simulate loads experience through typical
`consumer use” and “vibration tests” to further “test the integrity of the laptop structure.” Id. ¶¶
`127-29. Plaintiffs further allege that Defendant conducted reliability-growth tests “specifically
`for display packaging, including but not limited to glasses, adhesives, plastics, coating, and other
`components.” Id. ¶¶ 131, 136. These tests bolster previous allegations regarding real-life user
`studies, where “[h]undreds of employees are provided with pre-production units.” Id. ¶ 133.
`Defendant’s challenges to these allegations depend on two plainly inapposite cases. First,
`as to torsion testing, Defendant takes the facts of In re Seagate Tech. LLC Litig., 233 F. Supp. 3d
`776 (N.D. Cal. 2017), out of context to argue that there must be allegations that the “failure rate
`from Apple’s torque or torsion tests would have been unusual or alarming and thus revealed the
`alleged defect.” Mot. at 9. Seagate involved allegations that a defendant published false annual
`failure rates of hard drives to deceive consumers as to the drives’ reliability. 233 F. Supp. 3d at
`3
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 10 of 22
`
`788-90. The court held that it was plausible the defendant “knew and failed to disclose” that its
`published data was “inaccurate” based on the defendant’s “presumed pre-market testing of its
`products.” Id. at 795. Second, as to all other relevant pre-release tests Plaintiffs sufficiently
`allege would have revealed the Defect, Defendant only makes a conclusory argument that those
`tests are generic. Mot. at 9-10. Defendant relies entirely on Burdt v. Whirlpool Corp., 2015 WL
`4647929, at *4 (N.D. Cal. Aug. 5, 2015). Unlike here, the Burdt plaintiff relied on an
`“undetailed assertion that the testing must have revealed the alleged defect.” Id.
`Defendant thus provides no good reason to disregard any of Plaintiffs’ pre-release testing
`allegations, which raise an inference of pre-sale knowledge for all Plaintiffs. Indeed, Plaintiffs’
`pre-release testing allegations match or surpass those of analogous cases. See, e.g., Davidson v.
`Apple, Inc., 2017 WL 3149305, at *1, 15 (N.D. Cal. July 25, 2017) (finding pre-release tests
`such as “bending” tests and “real-life user studies” showed pre-sale knowledge of “touchscreen
`defect,” due to “weakness in the external casing”). For example, in Taleshpour v. Apple Inc.,
`2021 WL 1197494, at *11 (N.D. Cal. Mar. 30, 2021), the court found that the plaintiffs included
`sufficient detail—namely that “Reliability Engineers” performed “reliability tests,” including
`“stress tests” that would have revealed the “failure of the backlight ribbon cables.” These pre-
`testing allegations, in addition to a sampling of consumer complaints (which all post-dated the
`plaintiffs’ purchases), and Defendant’s alleged deletion of comments, sufficed to allege
`Defendant’s knowledge. Id. (finding Burdt inapposite); see also Flier, 2022 WL 16823042, at
`*4–5 (collecting similar authority). The Court should find the same here, as Plaintiffs do include
`pre-sale complaints, among various other allegations.
`b.
`Plaintiffs’ other allegations bolster the inference
`of pre-sale knowledge
`As to consumer complaints, Defendant previously challenged Plaintiffs’ allegations
`because their sampling did not include more pre-sale complaints. MTD II at 12-13. Plaintiffs
`have now included additional pre-sale complaints, as well as additional allegations showing that
`Defendant tracks negative consumer sentiments from social media data, deletes and edits
`complaints on its forum, monitors and responds to consumer complaints on platforms like
`
`4
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 11 of 22
`
`Twitter through comments or private messaging on Twitter, and tracks consumer feedback
`through various organized repositories of internal data, including but not limited to repeat repair
`data and targeted feedback funneled specifically through the M1 MacBooks’ product pages. See
`SACC ¶¶ 139-181. Plaintiffs allege that consumers raised complaints on various platforms soon
`after product release, including as early as November 26, 2020 on Twitter, November 27, 2020
`on Reddit, and December 3, 2020 on Macrumors.com.1 See Rice v. Kimberly-Clark Corp., 2022
`WL 16804522, at *5 (E.D. Cal. Nov. 8, 2022) (finding inference of pre-sale knowledge where
`“defendant’s agents [responded] to those complaints” posted online). And as Plaintiffs allege,
`the majority of consumers who posted online comments did so only after pursuing other methods
`of directly contacting Defendant. SACC ¶ 172; Parrish v. Volkswagen Grp. of Am., Inc., 463 F.
`Supp. 3d 1043, 1054–58 (C.D. Cal. 2020) (finding pre-sale knowledge given direct complaints,
`online complaints, and testing).
`But Defendant now demands additional specifications without any support in the law.
`Defendant argues that Plaintiffs should have quantified the “percentage of online comments,” the
`“number of discussion threads,” or the “number of comments those other threads received.”
`Mot. at 6. Though Defendant’s engineers have developed methods to collect and quantify such
`data across the internet, Defendant cannot demand such detail at the pleading stage. See SAC ¶¶
`163-171.2 Further, Defendant gets the law wrong as to each of its supporting cases. Defendant
`mischaracterizes the holding of Williams v. Yamaha Motor Co., 851 F.3d 1015, 1026–27 (9th
`Cir. 2017), when it states that the Ninth Circuit held that “consumer complaints suffice to
`establish knowledge only when there were an unusual number of complaints.” Mot. at 6. The
`Ninth Circuit held no such thing, and reasonably so, because assessing pre-sale knowledge does
`not lend itself to such generalizations. See Parrish, 463 F. Supp. 3d at 1052 (“Williams does not
`
`
`1 Since Defendant deleted and edited posts on its own forum, the earliest date consumers raised
`the Defect on Defendant’s forum cannot be known absent discovery. See SACC ¶¶ 175-181.
`2 Plaintiffs’ allegations were clearly meant to convey a “representative sample.” Compare Tr. at
`4-5 with Mot. at 6 (arguing Plaintiffs did not use magic word “representative”). And Plaintiffs
`provide quantitative detail where administratively feasible. See, e.g., SACC n.31 (alleging 883
`users indicated they had the same question as comment on Defendant’s forum posted on March
`14, 2021); id. n.32 (same as to 2,514 users for comment posted on May 23, 2021).
`
`5
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 12 of 22
`
`stand for the proposition that there must have been an unusually high number of complaints prior
`to a plaintiff’s purchase. . . .”).3 Courts thus credit allegations that a defendant reviewed
`complaints that would have alerted it to a defect. See, e.g., id.; Rice, 2022 WL 16804522, at *5;
`In re Toyota RAV4 Hybrid Fuel Tank Litig., 534 F. Supp. 3d 1067, 1098-99 (N.D. Cal. 2021)
`(holding that “doubts” as to whether plaintiffs could actually “prove” pre-sale knowledge does
`not make a plaintiff’s case “implausible”).
`Defendant also tries to unduly cabin this Court’s approach. Mot. at 6 (citing Patterson v.
`RW Direct, Inc., 2018 WL 6106379, at *3 (N.D. Cal. Nov. 21, 2018)). In Patterson, the Court
`found that five complaints posted over five years were insufficient to allege pre-sale knowledge.
`See 2018 WL 6106379, at *3; 3:18-cv-00055-VC, Dkt. No. 27 ¶ 31. The plaintiff later alleged
`that 43 of 503 reviews on three sites “identified problems with the battery life.” Patterson, 382
`F. Supp. 3d 938, 940 (N.D. Cal. 2019). This Court found that single basis sufficient. Id. at *941.
`The Court rejected the defendant’s attempt to draw “stringent” distinctions based on the
`purported sales volume and failure to identify the relevant issue in the cited complaints. Id.
`Here, the Court should also reject the same distinctions Defendant makes based on the
`purported volume of sales and the purported failure to “identify the alleged defect.”4 See Mot. at
`6-7. The Court should also reject Defendant’s other efforts to improperly negate Plaintiffs’
`allegations. For example, Defendant resurrects its defect argument regarding the “virtually
`unbound set of symptoms,” despite Plaintiffs’ consistent defect theory.5 Neither should the
`Court allow Defendant to plead its own case to ostensibly prove that “online comments or
`
`
`3 Similarly, Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1148 (9th Cir. 2012), does not
`support Defendant’s position. In Wilson, the Circuit Court found that fourteen complaints were
`insufficient, where twelve were undated, two were dated two years after the plaintiffs’ purchases,
`and none were plausibly alleged to have been reviewed by the defendant. See id.
`4 Defendant argues that the comments could not provide notice of the defect, see Mot. at 7, but
`neglects all comments identifying the design defect, including a November 2021 comment
`stating that the issue others raised concerning the M1 MacBook “reminded him of a defect in
`another manufacturer’s laptop for which the display would crack from opening and closing the
`laptop,” showing how the M1 could have a defect arise from such normal use. See SACC ¶ 173.
`5 Contrary to Defendant’s arguments, see Mot. at 7, 10, Plaintiffs’ allegations concerning the
`symptoms remained unchanged and are consistent with the allegations of Plaintiff Casimir and
`others, including allegations that the M1 displays black out. See, e.g., FACC ¶¶ 30, 65, 67.
`
`6
`
`

`

`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 13 of 22
`
`reviews” are “overwhelmingly positive.” Mot. at 6 n.3. There are comparable reviews on those
`sites for previous defective MacBook models, see Lopez Decl. ¶ 2, Ex. A, which Defendant’s
`own employees referred to as a “steaming bag of sh[]t,” as reflected by negative consumer
`sentiments collected by Defendant regarding design issues and repeat repairs. See SACC ¶ 164.
`Further, because Defendant has issued ineffective repairs, Defendant also would have
`learned of the Defect at least shortly after product release when Apple engineers conducted early
`field failure analysis (“EFFA”) in light of early repairs and repeat repairs. Id. ¶¶ 138-39.
`Contrary to Defendant’s argument regarding the purportedly unknown timing of post-launch
`product quality monitoring, see Mot. at 8, Plaintiffs specify that EFFA begins “in the first weeks
`after shipping to capture returned units back from the field in order to conduct failure analysis on
`them.” SACC ¶ 138. Indeed, as to the previous defect for MacBooks models from 2015 to
`2019, Defendant’s EFFA engineers were aware as early as July 2015 that the failures were due to
`“sensitivity of the new design,” rather than any damage caused by consumers. Id. ¶ 69.
`Moreover, Defendant overlooks additional allegations supporting that the amount of
`repair requests and other direct complaints to Defendant was significant enough to put Defendant
`on notice. Compare Mot. at 8 with SACC ¶ 148-150, 156-60. Plaintiffs allege that after
`receiving high quotes for repairs from Defendant, consumers have also sought to conduct self-
`repairs using thicker replacement displays for the M1 displays from Amazon. Id. ¶¶ 156-59
`(undated blog post “direct[ing] consumers to purchase a replacement screen on Amazon to avoid
`the ‘expensive’ repair cost” for “M1 cracking the screen itself for no reason”). In fact, despite
`limited ability to identify the earliest available offering, Plaintiffs verified that these replacement
`screens were available at least as early as “early Spring 2021” and that despite the limited time
`the M1 has been on the market, “the display for the M1 MacBook has reigned among the top
`three best-selling replacement displays, followed by displays for laptops that are significantly
`older or significantly cheaper, including a model that retails for less than $300.” Id. ¶¶ 158-59.
`These allegations support the inference that Apple itself has received a significant
`number of repair requests and direct complaints specifically for its M1 MacBooks. Id. ¶ 172.
`The thicker nature of replacement displays also supports Plaintiffs’ allegations that Defendant’s
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`Case 3:21-cv-07109-VC Document 61 Filed 11/28/22 Page 14 of 22
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`Display Reliability Engineers and EFFA engineers would have identified that the Defect
`stemmed from the thinner, insufficiently supported and sensitive design. Id. ¶ 159. Indeed,
`Plaintiffs allege that certain Apple employees have acknowledged the Defect and the ineffective
`nature of repairs. Id. ¶¶ 148-50. For example, in early July 2021, when Plaintiff Colindrez went
`for a second repair, the Genius Bar technician notated that “there was again ‘[n]o point of
`impact,’” said Apple was aware of the widespread issue, and “explained that Apple designed the
`M1 MacBook incorrectly and that the repairs will not permanently correct the issue.” Id. ¶ 149.
`In addition to repeat-repair data, Plaintiffs allege that Defendant had other organized
`repositories of internal data that would have alerted it to the Defect (and which Defendant fails to
`address), including a consumer response system for handling consumer feedback for the M1
`MacBooks, for which Defendant “read[s] all feedback carefully.” See id. ¶¶ 140-147. These
`allegations bolster the inference of pre-sale knowledge, particularly when considered together
`with Plaintiffs’ previous allegations, including the patent, online articles from the first two days
`of August 2021, and its statement masking the Defect after having accrued months of data
`related to the Defect, including early consumer complaints and repeat-repair requests. See id. ¶¶
`16-18, 36-38, 139, 167, 172-73, 182-183; In re MyFord Touch Consumer Litig., 46 F. Supp. 3d
`936, 958 (N.D. Cal. 2014) (inferring accretion of knowledge). Defendant also overlooks
`allegations concerning other certain websites, for which Apple accounts for coverage by
`influencers. SACC ¶ 168. For example, Plaintiffs al