Case 5:22-cv-01095-SVK Document 1 Filed 02/22/22 Page 1 of 13
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`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Joel D. Smith (State Bar No. 244902)
`Sean L. Litteral (State Bar No. 331985)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: ltfisher@bursor.com
`jsmith@bursor.com
`slitteral@bursor.com
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`Attorneys for Plaintiff
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`BARRY RICHARDS, individually and on behalf
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`of all others similarly situated,
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`v.
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`APPLE INC.,
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` Defendant.
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`Plaintiff,
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` Case No.
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`CLASS ACTION COMPLAINT
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`JURY TRIAL DEMANDED
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`FACTUAL ALLEGATIONS
`1.
`This is a putative class action filed by Plaintiff Barry Richards (“Plaintiff”) on
`behalf of himself and all others similarly situated against Defendant Apple Inc. (“Apple” or
`“Defendant”) for the manufacture, marketing, detailing, distribution, and sale of Apple HomePods
`that were rendered inoperative by a defective software update issued by Apple.
`2.
`The Apple HomePod is a wireless “smart speaker” for home audio. It is designed to
`integrate with an Apple iPhone, and multiple HomePods can be wirelessly linked throughout a
`home. The HomePod also serves as a remote hub for other Apple devices that can control lighting,
`thermostats, or other functions.
`3.
`Apple first began selling HomePods in January or February 2018.
`4.
`The original HomePod had a premium $349 price tag that matched Apple’s
`marketing angle, which presented the HomePods as a music-first device with excellent sound
`quality.
`5.
`However, in March 2021, Apple officially discontinued the original HomePod and
`began selling the HomePod mini, which is a smaller iteration of the original HomePod.
`6.
`After March 2021, Apple continued to issue software updates for the original Home
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`Pod.
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`In approximately May 2021, Apple released software update 14.6 for original
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`7.
`HomePods.
`8.
`On its website, Apple told consumers that software update 14.6 “includes general
`performance and stability improvements.”
`9.
` Apple’s software updates upload to HomePods automatically, including update
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`14.6.
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`10.
`After update 14.6 was issued, however, many Apple HomePod owners found that
`the software update “bricked” their HomePods, meaning they ceased working and were useless.
`11. Many consumers complained about this problem on Redditt and other online
`forums. As one consumer described, “When it’s plugged in, doesn’t power up – the top doesn’t
`light up or respond to touch.” Other owners chimed in and said that their speakers could power up,
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`but could not otherwise function. Another HomePod owner noted: “Same problem with my stereo
`pair, although the one HomePod didn’t just ‘die’ – it became unresponsive with constant flashing
`volume buttons. Same result, though.” Another HomePod owner explained that a newly opened
`HomePod was set up, updated to 14.6, and then it lost connection. A hard reset caused the LED to
`turn red and the volume lights to blink, but it was non-functional. There were many more
`complaints online; the aforementioned complaints are only examples.
`12.
`Apple monitors warranty claims and customer complaints to track trends and
`recurring issues with its products.
`13.
`Apple received an unusually high number of complaints about the original
`HomePods becoming inoperative after Apple issued software update 14.6.
`14.
`However, by this time, Apple had already discontinued the original Apple
`HomePod, and thus had little incentive to prioritize a solution.
`15.
`Although Apple caused the problem with the HomePods, Apple’s policy was to
`deny any relief for owners of products that were past their 1-year warranty. One frustrated
`HomePod owner said he walked into an Apple retail store and was advised “to pay almost full
`price to replace an abandoned product” because the warranty had expired. Another similarly
`complained, the “[s]ame happened to me two days ago. Apple basically told me to buy another one
`since my warranty expired 6 months ago and service fee is $280.”
`16.
`It is unfair to force someone to pay upwards of $300 for a HomePod replacement
`when a software update from Apple is what broke the HomePod in the first place.
`17.
`Planned obsolescence is a business strategy in which the obsolescence (the process
`of becoming obsolete, that is, unfashionable or no longer usable) of a product is planned and built
`into it from its conception, by the manufacturer. This is done so that, in the future, the consumer
`feels a need to purchase new products and services that the manufacturer brings out as
`replacements for the old ones.
`18.
`Planned obsolescence is part of Apple’s business model.
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`19.
`Apple has in the past faced several lawsuits in the United States and Europe alleging
`that Apple engaged in practices designed to force consumers to buy new Apple products before
`they would otherwise have to.
`20.
`Through this business strategy, Apple bricked the original HomePods, or
`alternatively, it decided not to provide a remedy for the problems caused by software update 14.6,
`because Apple had discontinued the original HomePods and wanted consumers to purchase the
`newer HomePod minis.
`21.
`If owners of original HomePods replaced their broken systems with HomePod
`minis, then Apple would sell more HomePod minis and profit from those sales.
` PARTIES
`22.
`Plaintiff Barry Richards is domiciled in North Carolina, and lives in Randleman,
`North Carolina.
`23.
`In or around October 2019, Plaintiff purchased an original Apple HomePod from a
`store called Other World Computing for his personal use. Initially, the HomePod worked fine and
`as intended. After his HomePod automatically received the 14.6 software update, it malfunctioned
`and would not reset. Plaintiff took the device to an Apple Authorized Service Provider for repair
`and was told that the Provider would match Apple’s cost of $279 to repair the device. Plaintiff has
`lost the use of his HomePod as a result of the 14.6 software update.
`24.
`Defendant Apple, Inc. is incorporated under the laws of the State of California.
`25.
`Apple maintains its principal place of business in Cupertino, California.
`26.
`Apple manufactures Apple HomePods.
`27.
`Apple distributes Apple HomePods to retailers throughout the United States.
`28.
`Apple sells Apple HomePods directly to consumers in the United States through its
`Apple stores and on Apple’s website.
`JURISDICTION AND VENUE
`29.
` This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)(A)
`because this case is a class action where the aggregate claims of all members of the proposed class
`are in excess of $5,000,000.00, exclusive of interest and costs, and Plaintiff, as well as most
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`members of the proposed class, are citizens of states different from Defendant. This Court also has
`supplemental jurisdiction over state law claims pursuant to 28 U.S.C. § 1367.
`30.
`This Court has personal jurisdiction over Apple because its principal place of
`business is within this District and it has sufficient minimum contacts in California to render the
`exercise of jurisdiction by this Court proper and necessary.
`31.
`Venue is proper in this District under 28 U.S.C. § 1391(b) because a substantial part
`of the events giving rise to Plaintiff’s claims occurred in this District.
`32.
`Employees at Apple’s headquarters directed the production and assembly of the
`Apple HomePod hardware and software, including all software updates.
`33.
`Promotional activities and literature were developed and coordinated at, and
`emanated from, Apple’s California headquarters.
`34.
`The decision to issue software update 14.6 for the Apple HomePod was made in
`California.
`35.
`Software update 14.6 for the Apple HomePod was developed in California.
`36.
`The steps and procedures taken to issue software update 14.6 for the Apple
`HomePod were made in California.
`37.
`Software update 14.6 was transmitted from California to putative class members’
`Apple HomePods.
`38.
`California is where Apple employees made the final decision to deny relief to
`putative class members whose HomePods were adversely affected by software update 14.6.
`CLASS ALLEGATIONS
`39.
`Plaintiff brings this lawsuit under Federal Rule of Civil Procedure 23(a), (b)(1),
`(b)(2), and/or (b)(3) as representatives of:
`Nationwide Class:
`All persons within the United States who purchased, other than for resale, an Apple
`Home Pod.
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`California Subclass:
`All persons who purchased, other than for resale, within California, an Apple Home
`Pod.
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`North Carolina Subclass:
`All persons who purchased, other than for resale, within North Carolina, an Apple
`Home Pod.
`40.
`The following persons and entities are excluded from the Class: Apple and its
`officers, directors, employees, subsidiaries, and affiliates; all judges assigned to this case and any
`members of their immediate families; and the parties’ counsel in this litigation.
`41.
`Plaintiff reserves the right to modify, change, or expand the Class definition,
`including proposing additional subclasses, based upon discovery and further investigation.
` Numerosity. Apple sold tens of thousands of the Devices. Members of the
`42.
`Classes are widely dispersed throughout the country. Class members are so numerous that joinder
`is impracticable.
`Typicality. Plaintiff’s claims are typical of the claims of all Class members.
`43.
`Plaintiff, like all Class members, purchased the Device, later rendered inoperable by the 14.6
`update. Plaintiff, like all Class members, would not have purchased, or would have paid
`substantially less for, the Device, had he known of the Defect or that Apple would respond
`inadequately when the Defect manifested.
`Adequacy. Plaintiff will fairly and adequately protect the interests of the Class. He
`44.
`has no interests antagonistic to the interests of the other Class members and are committed to
`vigorously prosecuting this case. Plaintiff has retained competent counsel experienced in the
`prosecution of consumer protection class actions involving defective consumer electronics.
`Commonality and Predominance. Questions of law and fact common to the class
`45.
`members predominate over questions that may affect only individual Class members, because
`Apple acted on ground generally applicable to the Class as a whole. Questions of law and fact
`common to the Class include:
`b.
`Whether the Defect substantially impairs the value of the Device;
`d.
`Whether a reasonable consumer would consider the Defect and its
`consequences important to the decision of whether to purchase the
`Device;
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`b.
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`Whether Plaintiff and Class members overpaid for their Devices as a
`result of the Defect;
`Whether Plaintiff and Class members are entitled to equitable relief,
`including restitution and injunctive relief; and
`Whether Plaintiff and Class members are entitled to damages or other
`monetary relief, and if so, in what amount.
`Superiority. A class action is superior to all other available methods for the fair
`46.
`and efficient adjudication of this controversy. Because the amount of each individual Class
`member’s claim is small relative to the complexity of the litigation, and because of Apple’s
`financial resources, Class members are not likely to pursue legal redress individually for the
`violations detailed in this Complaint. Individualized litigation would significantly increase the
`delay and expense to all parties and to the Court and would create a potential for inconsistent and
`contradictory rulings. By contrast, a class action presents far fewer management difficulties,
`allows claims to be heard which would otherwise go unheard because of the expense of bringing
`individual lawsuits, and provides the benefits of adjudication, economies of scale, and
`comprehensive supervision by a single court.
`47.
`Class certification is also appropriate under Rules 23(b)(1) and/or 23(b)(2) because:
`a.
`The prosecution of separate actions by the individual members of the Class
`would create a risk of inconsistent or varying adjudications establishing
`incompatible standard of conduct for Apple;
`The prosecution of separate actions by individual Class members would
`create a risk of adjudication that would, as a practical matter, be dispositive
`of the interests of other Class members not parties to the adjudication, or
`would substantially impair or impede their ability to protect their interests;
`and
`Apple has acted and refused to act on grounds generally applicable to the
`Class, thereby making appropriate final injunctive relief with respect to the
`members of the Class as a whole.
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`FIRST CAUSE OF ACTION
`Trespass to Chattels
`48.
`All allegations contained in the preceding paragraphs are incorporated by reference
`as if fully set forth herein.
`49.
`This cause of action is brought on behalf of all putative classes alleged in this
`complaint.
`50.
`Putative class members maintained actual or constructive possession of their Apple
`Home Pods when Apple issued the 14.6 software update.
`51.
`Putative class members did not consent to having the 14.6 software update interfere
`or disrupt the functionality of their Apple Home Pods.
`52.
`Apple’s interference was the actual and proximate cause of injury to putative class
`members because it actually and substantially harmed the functioning of the Apple Home Pods.
`The 14.6 software update significantly impaired the Apple Home Pods’ condition, quality, and
`value. Apple’s interference also deprived putative class members of the use of their personal
`property.
`53.
`As a part of Apple’s business strategy, Apple knew that its conduct would cause
`injury to putative class members. Defendants acted with conscious disregard for the rights of
`putative class members.
`54.
`As a result of Apple’s interference with the Apple Home Pods, putative class
`members are entitled to recover their actual damages in an amount to be determined at trial, as well
`as punitive damages.
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`SECOND CAUSE OF ACTION
`Unjust Enrichment
`55.
`All allegations contained in the preceding paragraphs are incorporated by reference
`as if fully set forth herein.
`56.
`This cause of action is brought on behalf of all putative classes alleged in this
`complaint.
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`To the extent required by law, Plaintiff brings this claim in the alternative to the
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`57.
`legal claims.
`58.
`Putative class members purchased Apple’s Apple HomePods.
`59.
`Apple profits when people purchase Apple HomePods from Apple.
`60.
`Had putative class members known that Apple would later issue an automatic
`software update that would impair the functionality of the Apple HomePods, they would have paid
`less for their Apple HomePods or would not have bought them at all.
`61.
`Apple has been unjustly enriched by retaining profits derived from putative class
`members’ purchases of Apple Home Pods. Retention of profits under the circumstances here is
`unjust because Apple impaired or destroyed the functionality of Apple HomePods, which caused
`putative class members to suffer a diminution in value of their HomePods.
`62.
`Retention of those profits also is unjust because Apple has not provided adequate
`relief to putative class members whose HomePods were adversely affected by the software update
`at issue here.
`63.
`Putative class members have suffered an injury in fact and have lost money as a
`result of Apple’s unjust conduct in that they paid more for Apple HomePods than their fair value as
`a result of Apple’s harmful software upgrade, and were deprived of the use of their HomePods.
`Putative class members lack an adequate remedy at law with respect to this claim and are entitled
`to non-restitutional disgorgement of the financial profits that Apple obtained as a result of its unjust
`conduct.
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`THIRD CAUSE OF ACTION
`Violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5)(B)-(C)
`64.
`All allegations contained in the preceding paragraphs are incorporated by reference
`as if fully set forth herein.
`65.
`This cause of action is brought on behalf of all putative classes alleged in this
`complaint.
`66.
`Apple HomePods are computers and protected computers under the Computer Fraud
`and Abuse Act.
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`67.
`All putative class members are persons under the Computer Fraud and Abuse Act.
`68.
`Defendant automatically uploaded software update 14.6 to Apple HomePods.
`69.
`Software update 14.6 impaired the integrity and availability of the Apple
`HomePods, as well as the data, programs, systems, and information on the Apple HomePods.
`70.
`By automatically uploading software update 14.6 to Apple HomePods, Defendant
`intentionally accessed class members’ computers without authorization, and as a result of such
`conduct, causes damage and loss to putative class members. In the alternative, Defendant’s
`conduct in uploading software update 14.6 recklessly caused damage to putative class members.
`71.
`The 14.6 software update caused a loss to 1 or more persons during any 1-year
`period aggregating at least $5,000 in value.
`72.
`Plaintiff seeks all available relief under the Computer Fraud and Abuse Act.
`FOURTH CAUSE OF ACTION
`California’s Computer Data Access and Fraud Act, Cal. Penal Code
`§ 502(c)(4), (c)(5), (c)(7), and (c)(8)
`73.
`All allegations contained in the preceding paragraphs are incorporated by reference
`as if fully set forth herein.
`74.
`This cause of action is brought on behalf of all putative classes alleged in this
`complaint.
`75.
`Apple HomePods are computers and computer systems under the Computer Data
`Access and Fraud Act.
`76.
`Defendant automatically uploaded software update 14.6 to Apple HomePods.
`77.
`Software update 14.6 is a computer contaminant under the Computer Data Access
`and Fraud Act.
`78.
`Software update 14.6 damaged data, computer software or computer programs
`residing in the Apple HomePods, which were necessary for the proper functionality of the Apple
`HomePods.
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`79.
`Software update 14.6 disrupted or caused the disruption of computer services from
`Apple HomePods, and caused the denial of computer services to authorized users of the Apple
`HomePods.
`80.
`By automatically uploading software update 14.6, Defendant knowingly and
`without permission accessed the Apple HomePods.
`81.
`By automatically uploading software update 14.6, Defendant knowingly introduced
`a computer contaminant into the Apple HomePods.
`82.
`By automatically uploading software update 14.6 to Apple HomePods, Defendant
`intentionally accessed class members’ computers without authorization, and as a result of such
`conduct, causes damage and loss to putative class members. In the alternative, Defendant’s
`conduct in uploading software update 14.6 recklessly caused damage to putative class members.
`83.
`The 14.6 software update caused a loss to 1 or more persons during any 1-year
`period aggregating at least $5,000 in value.
`84.
`Plaintiff seeks all available relief under the Computer Data Access and Fraud Act.
`FIFTH CAUSE OF ACTION
`Violation of California’s Unfair Competition Law,
`Cal. Bus. & Prof. Code § 17200, et seq.
`85.
`All allegations contained in the preceding paragraphs are incorporated by reference
`as if fully set forth herein.
`86.
`This cause of action is brought on behalf of all putative classes alleged in this
`complaint.
`87.
`The UCL proscribes “any unlawful, unfair or fraudulent business act or practices
`and unfair, deceptive, untrue or misleading advertising.” Cal. Bus. & Prof. Code § 17200.
`88.
`This cause of action is brought under the “unfair” and “unlawful” prongs of the
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`UCL.
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`89.
`Apple engaged in unfair conduct, first by issuing a software update that impaired the
`functionality of Home Pods, and then by failing to provide adequate remedies to putative class
`members for their loss of use of the Home Pods.
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`90.
`Apple’s conduct is unlawful, in violation of the UCL, because it violates the statutes
`and common law causes of action at issue here.
`91.
`Apple’s conduct is immoral, unethical, oppressive, unscrupulous, and substantially
`injurious to consumers.
`92.
`The gravity of harm resulting from Apple’s unfair conduct outweighs any potential
`utility.
`93.
`The injury to putative class members was substantial, and not outweighed by any
`countervailing benefits to consumers or competition.
`94.
`The harm from Apple’s conduct was not reasonably avoidable by consumers.
`95.
`Plaintiff seeks all available relief under the UCL, including injunctive relief.
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`REQUEST FOR RELIEF
`WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, seek
`judgment against Defendant, as follows:
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`(a)
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`(b)
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`(c)
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`(d)
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`(e)
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`(f)
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`(g)
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`(h)
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`For an order certifying the alleged putative classes under Rule 23 of the
`Federal Rules of Civil Procedure and naming Plaintiff as class
`representative, and Bursor & Fisher, P.A. as Class Counsel to represent the
`proposed classes;
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`For an order declaring that Defendant’s conduct violates the statutes
`referenced herein;
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`For an order finding in favor of Plaintiff and all putative classes on all counts
`asserted herein;
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`For compensatory, statutory, and punitive damages in amounts to be
`determined by the Court and/or jury;
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`For restitution and non-restitutionary disgorgement of financial profits.
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`For prejudgment interest on all amounts awarded;
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`For injunctive relief as pleaded or as the Court may deem proper;
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`For an order awarding Plaintiff and members of the Class and Subclass their
`reasonable attorneys’ fees and reimbursement of litigation expenses and
`costs of suit; and
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`Case 5:22-cv-01095-SVK Document 1 Filed 02/22/22 Page 13 of 13
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`(i)
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`For such other and further relief as the Court may deem proper.
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`Dated: February 22, 2022
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`Respectfully submitted,
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`BURSOR & FISHER, P.A.
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`By: /s/ Joel D. Smith
` Joel D. Smith
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`L. Timothy Fisher (State Bar No. 191626)
`Joel D. Smith (State Bar No. 244902)
`Sean L. Litteral (State Bar No. 331985)
`1990 North California Boulevard, Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: ltfisher@bursor.com
`jsmith@bursor.com
` slitteral@bursor.com
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`Attorneys for Plaintiff and the Putative Class
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`CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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