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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 1 of 21
`
`George V. Granade (State Bar No. 316050)
`ggranade@reesellp.com
`REESE LLP
`8484 Wilshire Boulevard, Suite 515
`Los Angeles, California 90211
`Telephone: (310) 393-0070
`Facsimile: (212) 253-4272
`
`Michael R. Reese (State Bar No. 206773)
`mreese@reesellp.com
`REESE LLP
`100 West 93rd Street, 16th Floor
`New York, New York 10025
`Telephone: (212) 643-0500
`Facsimile: (212) 253-4272
`
`Counsel for Laurie Braaten and the Proposed Class
`(additional counsel on signature page)
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN JOSE DIVISION
`
`Laurie Braaten, individually and on behalf of all
`others similarly situated,
`
` Case No. 22-cv-4861
`
`Plaintiff,
`
`
`
`- against -
`
` Class Action Complaint
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`22
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`Apple Inc.,
`
`
`
`Defendant
`
` Jury Trial Demanded
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`1
`CLASS ACTION COMPLAINT
`
`

`

`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 2 of 21
`
`
`
`
`Plaintiff Laurie Braaten (“Plaintiff”), by her attorneys, alleges upon information and belief,
`
`except for allegations pertaining to Plaintiff, which are based on personal knowledge:
`
`FACTUAL ALLEGATIONS
`
`1.
`
`Apple Inc. (“Defendant”) manufactures, distributes, markets, labels, and sells the
`
`Apple Watch SE smart watch (“Product”) that Defendant represents to be “Swimproof”:
`
`
`
`
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`Unfortunately for consumers, as detailed below, the Product is not Swimproof as
`
`2.
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`advertised.
`
`I.
`
`THE IMPORTANCE OF WATER RESISTANCE FEATURES
`
`3.
`
`Consumers have been increasingly concerned about protecting their smart watches
`
`from water damage.
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`4.
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`For example, according to reports, the number of smart watches offering resistance
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`against damage from water and other liquids has grown significantly since these devices were first
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`introduced several years ago, while non-water-resistant smart watches have declined.
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`5.
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`Consumers demand water resistant features because there are significant repair and
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`replacement costs when a non-water-resistant smart watch is damaged or destroyed.
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`6.
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`The costs are significant to users, who must repair or replace expensive smart
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`watches, and to the environment, when a device is discarded.
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`7.
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`
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`2
`CLASS ACTION COMPLAINT
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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 3 of 21
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`8.
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`This “hidden tax” due to the inability to withstand even minimal contact and
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`immersion in water costs American consumers over $10 billion each year.
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`9.
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`10.
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`Accidental damage is estimated as responsible for 95% of smart watch failures.
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`Reports indicate that approximately one-third of all smart watch failures are due to
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`liquid damage, such as accidental and temporary contact and/or immersion in water.
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`11.
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`In 2016, the International Data Corporation (“IDC”) found that contact with water
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`was the second largest cause of damage to smart electronic devices in the world.
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`12.
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`Aside from longer battery life and shatterproof screens, water resistance has become
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`a key smart watch feature in demand by consumers.
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`13.
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`Thus, water-resistant features allow electronic companies to increase revenues by
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`obtaining a price premium and/or increased units sold.
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`14.
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`15.
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`Defendant provides that its watches have a water resistance of WR50.
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`The WR50 water resistance rating, under International Organization for
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`Standardization (“ISO”) standard 22810:2010, means that the Product has a water resistance to
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`withstand 50 meters/5 atmospheres/5 bars of pressure/165 feet.
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`16. More specifically, WR50 means that it can be used for water activities, like
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`swimming, showering, etc.
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`17.
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`Defendant describes the Product as “swimproof” and its marketing suggests and
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`implies that this means “waterproof.”
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`18. Moreover, most consumers do not distinguish between “waterproof”, “swimproof”
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`or “water-resistant.”
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`19.
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`20.
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`A product is water-resistant if it can resist the penetration of water to some degree.
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`The term “waterproof” indicates that the enclosure of the device is completely
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`impervious to water.
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`21.
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`Since only hermetically sealed products may be truly waterproof, and to avoid
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`disputes and ambiguities for watches, the term “waterproof” was replaced by the term “water-
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`resistant” in the ISO 2281:1990 standard.
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`3
`CLASS ACTION COMPLAINT
`
`

`

`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 4 of 21
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`22.
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`Since then, only the term “water-resistant” has been used to describe electrical
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`devices and the water resistance test standards set forth by the ISO.
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`23.
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`The replacement of the term “waterproof” with the term “water-resistant” by the ISO,
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`however, has not changed the reasonable consumers’ belief that the terms are synonymous.
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`24.
`
`Defendant takes advantage of reasonable consumers’ inability to distinguish between
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`the two terms through marketing practices that superimpose the term “water-resistant” against a
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`backdrop of visuals and statements that imply the Product is waterproof.
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`25.
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`Defendant attempts to substantiate its “water-resistance” claims, and disclaim any
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`perceived “waterproof” claim, by referencing an ISO Standard that does not provide information
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`relevant to the real-world use of the Product by consumers.
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`II.
`
`DEFENDANT PROMOTES THE WATER-RESISTANT FEATURES OF THE
`PRODUCT
`
`26.
`
`Defendant’s advertising and marketing of the Product emphasizes its water
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`resistance.
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`27.
`
`Defendant displays the Product surrounded by a splash of water, stating “Works
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`swimmingly in the water,” with “water” written in blue text.
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`
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`4
`CLASS ACTION COMPLAINT
`
`

`

`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 5 of 21
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`
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`28. When the “+” in the lower right corner is clicked, Defendant further provides that
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`the Product is “water resistant 50 meters.”
`
`
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`Works swimmingly in the water.
`
`Apple Watch SE is water resistant 50 meters.2
`Dive right in and start tracking your splits and sets
`in the pool, or even map your route in open water.
`
`29.
`
`Viewing footnote 2 provides further information regarding the water resistance,
`
`which is WR50 under ISO standard 22810:2010.
`
`
`2. Apple Watch Series 7, Apple Watch SE, and Apple Watch Series 3 have a water
`resistance rating of 50 meters under ISO standard 22810:2010. This means that they may
`be used for shallow-water activities like swimming in a pool or ocean. However, they
`should not be used for scuba diving, waterskiing, or other activities involving high-velocity
`water or submersion below shallow depth. Series 7 is also rated IP6x dust resistant.
`
`30.
`
`A water resistance rating of 50 meters (WR50) means that the Product will be water-
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`resistant enough to withstand shallow-water activities, such as swimming in an ocean or pool, but
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`not enough to withstand high-velocity water activities like scuba diving or waterskiing.
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`31.
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`The Product is also advertised as able to track swimming activity and map swimming
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`routes.
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`Works swimmingly in the water.
`
`Apple Watch SE is water resistant 50 meters.2
`5
`CLASS ACTION COMPLAINT
`
`

`

`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 6 of 21
`
`
`
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`Dive right in and start tracking your splits and sets
`in the pool, or even map your route in open water.
`
`32.
`
`Defendant further emphasizes that the Product is “swimproof,” placing this
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`representation towards the top of the abbreviated Product summary.
`
`
`
`III. THE PRODUCT FAILS TO MEET THE PROMISED WATER-RESISTANT,
`SWIMPROOF ABILITIES
`
`33.
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`Despite using an image of the device in water and using marketing language like
`
`“works swimmingly in the water” and “swimproof,” the Product is not water-resistant as understood
`
`by Plaintiff and consumers, and routinely fails in brief encounters with water.
`
`A.
`
`34.
`
`35.
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`ISO STANDARD AND TESTING
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`ISO standard 22810:2010 provides information on testing conditions.
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`Before any testing is done, the operative watch components are actuated and then
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`reset to their normal position.
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`36.
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`Throughout the testing, which includes a condensation test, water resistance tests by
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`immersion, and a water-resistant test by air pressure, the ambient and water temperatures are held
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`equal to each other, maintained between 18 °C and 25 °C (64.4 °F and 77 °F).
`
`37.
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`The ISO Standard is not intended for smart watches, does not apply to real world use
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`conditions of smart watches, and is not understood by most consumers, including Plaintiff.
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`38.
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`First, the ISO tests watches when they are brand new, a condition that will almost
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`never be met in the real world.
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`39.
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`In real-world conditions, the user will not have their smart watch subjected to
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`potential water damage immediately after they open it.
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`40.
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`In real-world conditions, the Product will not be immersed in purified, fresh water.
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`6
`CLASS ACTION COMPLAINT
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`

`

`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 7 of 21
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`41.
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`Over time, a smart watch will come into contact with bodily oils, cosmetics, suntan
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`lotions, and water, which all contain corrosive agents.
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`42.
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`This causes gradual corrosion and wearing out of parts, seals, conformal coatings,
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`foams, and adhesives, causing the permeability of the device to degrade over time.
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`43.
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`Second, the Product’s water protection barriers, such as coatings, glues, gaskets,
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`meshes, and membranes are porous, and only “deter” water from entering.
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`44.
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`These barriers degrade and fail, especially when the Product is subjected to various
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`temperatures, pressures, and mechanical force conditions.
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`45. Water entering the smart watch may still contact the junction of some wires, causing
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`new circuit paths, resulting in leakage currents or short circuits.
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`46.
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`Third, the general testing conditions for the ISO’s tests are within temperatures from
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`18 °C and 25 °C (64.4 °F and 77 °F).
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`47.
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`However, the temperature in pools, sinks, and bathtubs typically exceeds the
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`suggested temperature range under the ISO Standard, which impacts the efficacy of the Product’s
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`physical sealing.
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`48.
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`In real-world usage, consumers expect water-resistance translates to the device being
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`moisture proof, i.e., carried inside a backpack or purse, used to play music in a hot shower, and
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`moved rapidly between a cold indoor office to a hot and humid environment without sustaining
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`damage.
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`49.
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`Fourth, the ISO Standard does not specify whether a sample is energized when tested,
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`yet whether a smart watch is on when submerged will affect its ability to resist water.
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`50.
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`If the smart watch is on and running various programs, the internal temperature and
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`pressure will be elevated, and the electrical bias can accelerate electromigration.
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`51.
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`These factors may affect the depth and duration of water contact the smart watch can
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`withstand.
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`52.
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`Fifth, the acceptance criteria for the water resistance tests are vague, requiring only
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`that water entering a device not affect its normal operation or impair its safety.
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`53.
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`For example, one lab may rate a smart watch as “water-resistant” as long as a short
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`7
`CLASS ACTION COMPLAINT
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`

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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 8 of 21
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`circuit does not occur, and yet accept the fact that there was a reduction of acoustic performance.
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`54. When consumers buy a smart watch billed as water-resistant, they expect it will be
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`reliable in most situations that involve water, including but not limited to washing dishes, exercising,
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`and various forms of accidental “dunks” in a sink, toilet, or pool.
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`55.
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`Despite consumers expectations to the contrary based upon Defendant’s marketing,
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`an Apple Support article on Defendant’s website notes that the Products may not, in fact, be water-
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`resistant:
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`
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`Showering with Apple Watch Series 2 and
`newer is ok, but we recommend not exposing
`Apple Watch to soaps, shampoos, conditioners,
`lotions, and perfumes as they can negatively
`affect water seals and acoustic membranes.
`Apple Watch should be cleaned with fresh water
`and dried with a lint free-cloth if it comes in
`contact with anything other than fresh water.
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`
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`* *
`
`*
`
`
`
`or
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`Water resistance isn’t a permanent
`condition and may diminish over time.
`Apple Watch can't be rechecked or
`resealed
`for water resistance. The
`following may
`affect
`the water
`resistance of your Apple Watch and
`should be avoided:
` Dropping Apple Watch
`subjecting it to other impacts.
` Exposing Apple Watch to soap or
`soapy water (for example, while
`showering or bathing).
` Exposing Apple Watch to perfume,
`solvents, detergent, acids or acidic
`foods,
`insect
`repellent,
`lotions,
`sunscreen, oil, or hair dye.
` Exposing Apple Watch to high-
`velocity water (for example, while
`water skiing).
` Wearing Apple Watch in the sauna
`or steam room.
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`
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`56.
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`Plus, not all Product bands are water resistant, such as those made of stainless steel
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`8
`CLASS ACTION COMPLAINT
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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 9 of 21
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`
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`and leather.
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`Not all bands are appropriate for water use.
`For example, the stainless steel and leather
`bands aren't water resistant and shouldn't be
`exposed to liquids.
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`
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`57.
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`However,
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`such
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`statements are
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`inconsistent with
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`the Product’s water
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`resistance/swimproof marketing campaigns, which state it is water resistant 50 meters and depict
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`the Product being splashed in water.
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`58. Moreover, Plaintiff and the Class Members are not presented with these statements,
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`and are not otherwise told this information, prior to purchasing the Product, but rather only learn
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`this information after it begins malfunctioning, or ceases to function entirely, as a result of liquid
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`damage.
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`59.
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`A study supported by the National Key Research and Development Program of China
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`and the Center for Advanced Life Cycle Engineering, University of Maryland at College Park,
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`concluded that manufacturers, such as Defendant, regularly make false and deceptive
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`representations with respect to the water-resistant properties of their devices.
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`B.
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`60.
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`THE PRODUCT IS NOT WATER-RESISTANT AS ADVERTISED
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`A water resistance of 50 meters signifies that the Product’s enclosure is water
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`resistant at 50 meters/5 atmospheres/5 bars of pressure/165 feet.
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`61.
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`However, the Product suffers frequent damage after being dropped into, or contacted
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`with, water or other liquids, for a few minutes or even seconds.
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`62.
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`However, Defendant refuses to repair or replace liquid-damaged Products under its
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`warranty.
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`63.
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`Defendant’s representations regarding the water resistance capabilities of the Product
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`are false because it does not perform as advertised under normal, real-world conditions and use.
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`64.
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`The commercials, presentations, and website statements are only a few examples of
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`the advertisements Defendant created and distributed representing that the Product will not sustain
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`damage if submerged in, or contacted with, water, or other common liquids.
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`65.
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`Upon information and belief, Defendant has created internal indicators to detect
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`9
`CLASS ACTION COMPLAINT
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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 10 of 21
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`whether the Product has been exposed to liquids, in order to deny customers their warranty repair
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`and replacement requests.
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`66.
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`Defendant’s policy is to deny warranty repair and/or replacement when this indicator
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`is activated.
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`67.
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`This means buyers are told one thing when they buy the Product, based on the
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`representations, but something else when they need after-sales service or replacement.
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`68.
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`Purchasers are typically told that the price of repair exceeds the price at which they
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`purchased the Product new.
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`69.
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`Plaintiff and other reasonable consumers purchased the Product believing its water-
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`resistant capabilities were accurately represented.
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`70.
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`Plaintiff and other reasonable consumers either (1) would not have purchased the
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`Product if they had known about the misrepresentations and omissions, (2) would have purchased
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`it on different terms, i.e., at a lower price, (3) purchased a different smart watch, (4) not purchased
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`it at all, or (5) purchased it with diminished expectations about its water-resistant abilities.
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`71.
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`Plaintiff and Class Members reasonably relied to their detriment on Defendant’s
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`misleading representations and omissions.
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`72.
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`Defendant's false, misleading, and deceptive misrepresentations and omissions are
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`likely to continue to deceive and mislead reasonable consumers and the general public, as they have
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`already deceived and misled the Plaintiff and Class Members.
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`73.
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`In making the false, misleading, and deceptive representations and omissions,
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`Defendant knew and intended that Plaintiff and Class Members would pay a premium for products
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`represented as water resistant over comparable products not so marketed.
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`74.
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`Plaintiff and Class Members were deprived of the benefit of the bargain because they
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`paid for a Product that was water resistant but received a Product that was not water resistant.
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`75.
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`As an immediate, direct, and proximate result of Defendant's false, misleading, and
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`deceptive representations and omissions, Defendant injured Plaintiff and Class Members.
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`76.
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`The product Plaintiff and the Class Members received was worth less than the
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`Product for which they paid.
`
`10
`CLASS ACTION COMPLAINT
`
`

`

`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 11 of 21
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`77.
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`Based on Defendant's misleading and deceptive representations, Defendant was able
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`to, and did, charge a premium price for the Product over the cost of competitive products that are
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`not represented as water resistant.
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`78.
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`Consequently, Plaintiff and the Class Members suffered injury-in-fact and lost
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`money as a result of Defendant's wrongful conduct.
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`INTRADISTRICT ASSIGNMENT
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`79.
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`Pursuant to Civil L.R. 3-2(c) and (e) (“Assignment to a Division” and “San Jose”),
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`this Action should be assigned to the San Jose Division.
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`80.
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`This assignment is because this action arises in this District and within the San Jose
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`Division, in Santa Clara County.
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`PARTIES
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`81.
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`82.
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`Plaintiff is a citizen of Texas, residing in Houston, Harris County.
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`During the Class Period, Plaintiff purchased the Apple Watch SE from Apple.com
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`for no less than $279.00.
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`83.
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`Plaintiff viewed and relied upon Defendant’s representations that the Product was
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`swimproof and water resistant as described herein prior to her purchase and believed it could be
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`used while swimming or going into a pool.
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`84.
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`In or around January 2022, one of Plaintiff’s six rescue dogs jumped into the shallow
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`section of a pool, not deeper than three feet.
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`85.
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`Though Plaintiff was wearing her Apple Watch, she immediately jumped in that
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`shallow section to help her dog.
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`86.
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`Plaintiff’s use of the device was consistent with its operating instructions and the
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`representations regarding its expected water-resistant capabilities.
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`87.
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`Shortly after this incident, the Product became unstable and began to glitch and
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`malfunction.
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`88.
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`89.
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`Since that time, the Product’s effectiveness as a reliable device has been diminished.
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`Based on Plaintiff’s experience and knowledge, and Counsel’s investigation, it is a
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`known issue that a significant percentage of Apple Watches exposed to small amounts of water, in
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`the manner experienced by Plaintiff, results in the watch becoming damaged and its functionality
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`becoming diminished due to faulty sealing.
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`90.
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`Defendant is a California corporation with its principal place of business in
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`Cupertino, Santa Clara County, California.
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`91.
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`92.
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`93.
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`94.
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`Defendant is a global leader in the manufacture and sale of consumer electronics.
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`Defendant’s products include smart phones, computers, tablets, and smart watches.
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`Consumers trust Defendant to truthfully represent the capabilities of their products.
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`Apple is considered the “gold standard” for personal consumer electronics, which is
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`why its devices, including its Apple Watches, cost more than smart watches sold by competitors.
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`95.
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`Defendant manufactures, markets, sells Apple Watches directly to consumers across
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`the country from its brick-and-mortar Apple stores, from Apple.com, and through third-party
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`physical stores and online.
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`96.
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`Plaintiff would be willing to purchase the Product again if assured it possessed the
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`water-resistant capabilities it was advertised as having.
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`97.
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`Plaintiff is unable to rely not only on the representations of Apple Watches, but other
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`similar smart watches touted as being resistant to water, even though she would like to.
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`JURISDICTION AND VENUE
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`98.
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`Jurisdiction is proper pursuant to Class Action Fairness Act of 2005 (“CAFA”). 28
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`U.S.C. § 1332(d)(2)(A).
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`99.
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`This Court has subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(d) (“Class
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`Action Fairness Act” or “CAFA”).
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`100. The proposed class has at least 100 members, because the Product has been widely
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`sold within this State for several years.
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`101. Plaintiff is a citizen of a State different from Defendant.
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`102. Plaintiff alleges the amount-in-controversy of the claims of the proposed Class
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`exceed $5,000,000, exclusive of interest and costs.
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`103. Venue is proper in this District under 28 U.S.C. § 1391(d) because Defendant’s
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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 13 of 21
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`principal place of business is in Santa Clara County and it is considered to reside within this District
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`and has its most significant contacts within this District.
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`104. Substantial acts in furtherance of the alleged improper conduct, including the
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`dissemination of false and misleading information regarding the nature, quality, features and/or
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`attributes of the Product originated within this District at Defendant’s headquarters.
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`105. This Court has personal jurisdiction over Defendant because it conducts and transacts
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`business, contracts to supply and supplies goods within California.
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`CLASS ACTION ALLEGATIONS
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`106. Plaintiff brings this proposed class action pursuant to Fed. R. Civ. P. Rule 23, and
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`seeks to represent the class (“Class”) defined below:
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`All residents of the United States who purchased the Product at any time
`from August 25, 2018 to time of judgment in the United States for personal
`or household use.
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`107. Excluded from the Class are: (a) Defendant, Defendant’s board members, executive
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`-level officers, and attorneys, and immediately family members of any of the foregoing persons; (b)
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`governmental entities; (c) the Court, the Court’s immediate family, and the Court staff; and (d) any
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`person that timely and properly excludes himself or herself from the Class in accordance with Court-
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`approved procedures.
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`108. Excluded from the Class are Defendant, its parents, subsidiaries, affiliates, officers,
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`and directors, those who purchased the Products for resale, all persons who make a timely election
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`to be excluded from the Class, the judge to whom the case is assigned and any immediate family
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`members thereof, and those who assert claims for personal injury.
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`109. The members of the Class are so numerous that joinder of all Class Members is
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`impracticable.
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`110. Defendant sold the Product to no less than tens of thousands persons.
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`111. The Class consists of thousands of persons, and joinder is impracticable.
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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 14 of 21
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`112. Common questions of law or fact predominate and include whether Defendant’s
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`representations and omissions were and are misleading and if Plaintiff and Class Members are
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`entitled to injunctive relief and damages.
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`113. Plaintiff’s claims and her basis for relief are typical to other members because all
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`were subjected to the same unfair and deceptive representations and omissions with respect to the
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`Product’s water-resistance capabilities.
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`114. Plaintiff sustained damages from Defendant’s wrongful conduct, of the precise type
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`Defendant promised she would not.
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`115. Class Members experienced similar types of damage to what Defendant promised
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`the Product would withstand.
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`116. Plaintiff will fairly and adequately protect the interests of the Class and has retained
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`counsel that is experienced in litigating complex class actions.
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`117. Plaintiff has no interests which conflict with those of the Class.
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`118. No individual inquiry is necessary since the focus is only on Defendant’s practices
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`and the class is definable and ascertainable.
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`119. Plaintiff anticipates this Court can direct notice to Class Members, by publication in
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`major media outlets and the Internet.
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`120. A class action is superior to other available methods for adjudication of this
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`controversy, since individual actions would risk inconsistent results, be repetitive and are
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`impractical to justify, as the claims are modest relative to the scope of the harm.
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`121. The prerequisites to maintaining a class action for equitable relief are met as
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`Defendant has acted or refused to act on grounds generally applicable to the Class, thereby making
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`appropriate equitable relief with respect to the Class as a whole.
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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 15 of 21
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`FIRST CLAIM
`Breach of Express Warranty
`(On Behalf of the Class)
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`122. Plaintiff incorporates all preceding paragraphs.
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`123. Defendant promised and expressly warranted that the Product had water resistant and
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`swimproof capabilities.
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`124. Plaintiff and Class Members relied on these representations when purchasing the
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`Product.
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`125. All conditions precedent to Defendant’s liability under the contract, including notice,
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`have been performed by Plaintiff and Class Members.
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`126. Defendant has breached the terms of its express warranties by failing to provide the
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`Product as warranted.
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`127. Plaintiff and Class Members used the Product in a manner consistent with its
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`operating instructions and Defendant’s representations.
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`128. Plaintiff and Class Members performed their duties under the express warranties or
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`have been excused from such performance as a result of Defendant’s conduct.
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`129. As a direct and proximate result of Defendant’s breaches of express warranty,
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`Plaintiff and Class Members have suffered economic damages, including costly repairs, loss of use,
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`replacement costs, substantial loss in value and resale value of the Product.
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`SECOND CLAIM
`Violation of the Magnusson-Moss Warranty Act,
`15 U.S.C. §§ 2301 et seq. (“MMWA”)
`(On Behalf of the California Class)
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`130. The Products share common defects in that they are unable to provide water resistant
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`and swimproof capabilities consistent with Defendant’s representations.
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`131. Defendant marketed the Product as being water-resistant and swimproof and offered
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`certifications attesting to this fact.
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`132. Defendant was aware of the defects described in this Complaint, from Plaintiff and/or
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`other sources.
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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 16 of 21
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`133. However, the cost of this defect was borne by Plaintiff and Class Members.
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`THIRD CLAIM
`Breach of Implied Warranty of Merchantability
`and Fitness for a Particular Purpose
`(On Behalf of Class)
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`134. Defendant engaged in a focused marketing campaign to consumers concerned about
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`water damaging their smart watches and has reason to know that Plaintiff and Class Members
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`purchased the Product for a particular purpose, e.g., to be used in and around water and during water
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`activities.
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`135. Plaintiff and Class Members relied on Defendant’s skill or judgment to furnish
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`devices that accomplished that purpose.
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`136. Defendant breached the implied warranty of fitness because the Product was
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`incapable of satisfying that purpose, due to its defects alleged above.
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`137. As a direct and proximate result of the breach of said warranties, Plaintiff and Class
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`Members were injured in the amount they overpaid for the Product, and would not have purchased
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`it or would have paid less had they known the truth.
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`FOURTH CLAIM
`Violation of Unfair Competition Law
`Cal. Bus. & Prof. Code §§ 17200 et seq.
`(On Behalf of the Class)
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`138. Plaintiff incorporates all preceding paragraphs.
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`139. Defendant’s conduct constitutes an unfair business act and practice pursuant to
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`California Business & Professions Code §§ 17200, et seq. (the “UCL”). The UCL provides, in
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`pertinent part: “Unfair competition shall mean and include unlawful, unfair or fraudulent business
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`practices and unfair, deceptive, untrue or misleading advertising . . . .”
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`140. Defendant’s knowing conduct, as alleged herein, constitutes an “unfair” and/or
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`“fraudulent” business practice, as set forth in California Business & Professions Code §§ 17200-
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`17208.
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`141. Defendant’s conduct was and continues to be unfair and fraudulent because, directly
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`or through its agents and employees, Defendant made materially false representations and
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`Case 5:22-cv-04861-SVK Document 1 Filed 08/25/22 Page 17 of 21
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`omissions.
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`142. Defendant made representations that the Product was water resistant when it was not.
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`143. Defendant is aware that its representations and omissions about the Product were and
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`continue to be false and misleading.
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`144. Defendant had an improper motive, to derive financial gain at the expense of
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`accuracy or truthfulness, in its practices related to the marketing and advertising of the Product.
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`145. Defendant’s misrepresentations of material facts also constitute an “unlawful”
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`practice because they violate the laws and regulations cited herein, as well as the common law.
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`146. Defendant’s conduct was, and continues to be, unfair in that its injury to countless
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`purchasers of the Product is substantial and not outweighed by any countervailing benefits to
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`consumers or to competitors.
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`147. Plaintiff and Class Members have been directly and proximately injured by
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`Defendant’s conduct in ways including, but not limited to, the monies paid to Defendant for the
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`Produ