Case 3:18-cv-00780-MAS-LHG Document 1 Filed 01/18/18 Page 1 of 30 PageID: 1
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`James E. Cecchi
`CARELLA, BYRNE, CECCHI,
`OLSTEIN, BRODY & AGNELLO, P.C.
`5 Becker Farm Road
`Roseland, New Jersey 07068
`Tel: (973) 994-1700
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`Christopher A. Seeger
`SEEGER WEISS LLP
`55 Challenger Road, 6th Fl.
`Ridgefield Park, New Jersey 07660
`Tel: (973) 639-9100
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`Attorneys for Plaintiffs
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`Civil Action No.
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`CLASS ACTION COMPLAINT AND
`DEMAND FOR JURY TRIAL
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`JUDY MILLS, JUDITH DEAN,
`CARLA COMPAGNONE, AND
`KENNETH L. BUCK, individually and on
`behalf of all others similarly situated,
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`Plaintiffs,
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`vs.
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`APPLE INC.,
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`Defendant.
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`Plaintiff Judy Mills, Judith Dean, Carla Compagnone, and Kenneth L. Buck, on behalf
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`of themselves and all others similarly situated, on personal knowledge as to the facts
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`concerning themselves, and on information and belief as to all other matters, and based on the
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`investigation of counsel and public statements, bring this class action against Apple Inc.
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`(“Apple” or “Defendant”) pursuant to applicable state laws and allege as follows:
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`I.
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`INTRODUCTION
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`1.
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`This case concerns Defendant’s campaign to foist – through deceptive and
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`fraudulent marketing – defective Apple iPhones (“iPhone”) that degrade within just one-year of
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`use on Plaintiffs and other consumers throughout the United States and its scheme to mask the
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`defect by deliberately causing older Apple iPhone models to operate more slowly when new
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`models are released.
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`2.
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`Apple has admitted that the batteries of iPhones begin degrading within the first
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`year of use. In order to mask the defect, Apple’s software updates were engineered to
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`purposefully slow down or “throttle down” the performance speeds of iPhones as they get older.
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`Plaintiffs and Class Members never consented to allow Defendant to slow their iPhones; nor was
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`consent ever requested by Apple.
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`3.
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`While Apple has yet to come forth with a full and candid description of all facts
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`known only to it concerning its deliberate “throttling down” of older model iPhone speeds, what
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`Apple has admitted is damning. Apple admitted to slowing down the processing speed of
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`“older” model iPhones — SE, 6, 6S, and 7 — to preserve their batteries and prevent unexpected
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`shutdowns. Without disclosure or customer consent, Defendant promoted an upgrade to the
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`iPhone’s performance level with knowledge that the upgrade was actually a downgrade and such
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`baseless promotion is misleading to Plaintiffs and other iPhone users in a material respect.
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`4.
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`Indeed, rather than curing the battery defect by putting larger more suitable
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`batteries in the iPhones in the first place or providing free battery replacements for all affected
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`iPhones, Apple sought to mask the battery defect. This $700 to $1,000-plus product, as
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`designed, is unable to function near its peak after just a single year of use.
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`5.
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`Apple produced, promoted, sold, and distributed the iPhone throughout the United
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`States. Consumers across the United States paid millions of dollars for defective iPhones touted
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`as premium products using breakthrough technology that featured unmatched performance. As
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`Apple admits, the iPhones were inherently and materially defective. In short, from the moment
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`Plaintiffs and Class Members purchased their iPhones containing defective batteries, they were
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`an inferior, defective product that, by design and composition, did not have the qualities or
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`properties Apple continuously represented in its sales and marketing materials. The defective
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`iPhones were neither designed nor engineered to be used for the ordinary, expected purpose as
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`high performing and durable.
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`6.
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`Worse still, despite its knowledge of the defective batteries, Defendant has been
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`unable or unwilling to repair the defect at its own cost or offer Plaintiffs and Class Members a
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`non-defective iPhone or reimbursement for the cost of such defective iPhones and the
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`consequential damages arising the purchase and use of the iPhones. Because of Apple’s
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`fraudulent concealment of the defect, Plaintiffs and Class Members were left with the
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`unappealing choice of either tolerating the throttled-down performance or purchasing a new
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`iPhone from Defendant at costs in excess of $1,000, which may also function at peak levels for a
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`single year.
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`7.
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`As a result of Defendant’s wrongful conduct, it has interfered with Plaintiffs’ and
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`Class Members’ use or possession of their iPhones. Apple’s actions and omissions violate well
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`established legal and statutory duties it owed to Plaintiffs and all other similarly situated United
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`States consumers.
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`8.
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`Plaintiffs bring this class action on behalf of themselves and all similarly situated
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`consumers for actual and statutory damages, as well as punitive damages and equitable relief to
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`fully redress the vast harm Apple’s wrongful acts have unleashed on United States consumers.
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`A.
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`Plaintiffs
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`II.
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`PARTIES
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`9.
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`Plaintiff Judy Mills is a citizen of South Amboy, New Jersey. Ms. Mills owns an
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`iPhone 6, which was purchased new approximately three years ago from Verizon Wireless. Ms.
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`Mills’ iPhone 6 was covered by a written warranty. Prior to purchasing her iPhone 6, Ms. Mills
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`viewed and heard commercials that touted Apple’s long record of unmatched performance and
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`quality. Ms. Mills uses her iPhone 6 for numerous applications and services and depends on its
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`performance. Ms. Mills was unaware of the iPhone’s defect described herein prior to her
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`purchase of this iPhone 6. Over time, Ms. Mills noticed appreciable slowdowns in the operation
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`of her iPhone 6 after certain iOS updates were issued to her device.
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`10.
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`Plaintiff Judith Dean is a citizen of Branchville, New Jersey. Ms. Dean owned an
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`iPhone 6, which was purchased new several years ago. Ms. Dean’s iPhone 6 was covered by a
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`written warranty. Prior to purchasing her iPhone 6, Ms. Dean viewed and heard commercials
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`that touted Apple’s long record of unmatched performance and quality. Ms. Dean uses her
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`iPhone 6 for numerous applications and services and depends on its performance. Ms. Dean was
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`unaware of the iPhone’s defect described herein prior to her purchase of this iPhone 6. Over
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`time, Ms. Dean noticed appreciable slowdowns in the operation of the iPhone 6, after certain iOS
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`updates were issued to her device. Frustrated by the performance speed of her iPhone 6, Ms.
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`Dean visited the Apple Store in Rockaway, New Jersey. Apple’s staff member – a “genius” –
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`advised Ms. Dean that her phone was not defective, failed to disclose that Apple had
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`intentionally slowed performance which Ms. Dean relied upon, and recommended that she
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`purchase a newer iPhone with the world’s fastest processor. Because of the performance
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`degradation, Ms. Dean purchased a new iPhone 7 in or about December 2017 – not knowing that
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`iPhone 7s suffered from the same material defect and slowed performance. If Apple had
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`publically explained that it was purposefully throttling down the performance speed of its iPhone
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`devices, and that performance speed of iPhones could be improved by a replacement battery or a
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`larger more suitable battery, Ms. Dean would not have purchased an iPhone 7 to replace her
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`iPhone 6.
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`11.
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`Plaintiff Carla Compagnone is a resident of Everett, Massachusetts. Ms.
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`Compagnone owns an iPhone 6, which was purchased new approximately three years ago. Ms.
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`Compagnone’ iPhone 6 was covered by a written warranty. Prior to purchasing her iPhone 6,
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`Ms. Compagnone viewed and heard commercials that touted Apple’s long record of unmatched
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`performance and quality. Ms. Compagnone uses her iPhone 6 for numerous applications and
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`services and depends on its performance for both personal use and for her business. Ms.
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`Compagnone was unaware of the iPhone’s defect described herein prior to her purchase of this
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`iPhone 6. Over time, Ms. Compagnone noticed screen display problems asnd appreciable
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`slowdowns in the operation of her iPhone 6 after certain iOS updates were issued to her device.
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`12.
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`Plaintiff Kenneth L. Buck is a citizen of Galloway, New Jersey. Mr. Buck owns
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`an iPhone 6, which was purchased new in or about September 2014 from Verizon Wireless. Mr.
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`Buck’s iPhone 6 was covered by a written warranty. Prior to purchasing his iPhone 6, Mr. Buck
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`viewed and heard commercials that touted Apple’s long record of unmatched performance and
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`quality. Mr. Buck used his iPhone 6 for numerous applications and services and depended on its
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`performance. Mr. Buck was unaware of the iPhone’s defect described herein prior to his
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`purchase of this iPhone 6. Over time, Mr. Buck noticed appreciable slowdowns in the operation
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`of his iPhone 6 as well screen display problems after certain iOS updates were issued to his
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`device. Because of the performance degradation, Mr. Buck purchased a new iPhone 8 in or
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`about December 2017. If Apple had publically explained that it was purposefully throttling
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`down the performance speed of its iPhone devices, and that performance speed of iPhones could
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`be improved by a replacement battery or a larger more suitable battery, Mr. Buck would not have
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`purchased an iPhone 8 to replace his iPhone 6.
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`B.
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`Defendant
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`13.
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`Defendant Apple Inc. is a Delaware corporation with its principal place of
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`business located in Cupertino, California. At all relevant times, Defendant designed,
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`manufactured, distributed, marketed, and sold iPhones throughout the United States.
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`III.
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`JURISDICTION AND VENUE
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`14.
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`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
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`§§ 1331 and 1337, as well as jurisdiction over the state law claims pursuant to 28 U.S.C.
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`§§ 1332(d) and 1367 because this is a class action in which the matter or controversy exceeds the
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`sum of $5,000,000, exclusive of interest and costs, and in which some members of the proposed
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`Classes are citizens of a state different from the Defendant.
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`15.
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`Venue is proper in this District pursuant to 28 U.S.C. §§ 1391 (b), (c), and (d),
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`because a substantial part of the events giving rise to Plaintiffs’ claims occurred in this District.
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`16.
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`This Court has personal jurisdiction because Defendant does business in this
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`District and a substantial part of the events and injury giving rise to Plaintiffs’ claims occurred in
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`this District.
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`IV.
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`FACTUAL ALLEGATIONS COMMON TO ALL COUNTS
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`17.
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`Apple designed, manufactured, marketed, sold, and warranted its iPhones in New
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`Jersey, Massachusettes, and throughout the United States. As a leader in the United States
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`mobile phone and technology industry, Apple knows the critical importance of both performance
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`and battery life. Apple also knows the multitude of harms that foreseeably flow to individual
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`consumers when their performance is intentionally degraded without their knowledge.
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`18.
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`Apple promoted and touted the defective iPhones as achieving unmatched
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`performance with the most powerful processors put in a mobile phone. Indeed, when Apple
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`introduced the iPhone 7, it boasted that the A10 Fusion is the “most powerful chip ever in a
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`smartphone” that “blows away the competition”.
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`19.
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`Apple’s iPhones were inherently and materially defective. Due to a defective
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`battery that rapidly degraded within its first year of use, the iPhones were an inferior, defective
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`product that, by design and composition, did not have the qualities or properties Apple
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`continuously represented in its sales and marketing materials.
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`A.
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`Apple’s Intentional Performance Degradation
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`20.
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`Apple released operating system software updates (“iOS updates”) that it
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`expressly specified and recommended that Plaintiffs and Class Members should download and
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`install to “fix bugs and issues” and “increase performance” on their older model iPhones.
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`Among other things, Apple’s help staff – referred to as “Apple Geniuses” and touted by Apple as
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`possessing unique and specialized expertise about Apple products – recommended the download
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`and installation of iOS updates following Plaintiffs’ and Class Members’ purchases of iPhones.
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`21.
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`Apple purposefully and knowingly released iOS updates to older model iPhones
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`that slowed the performance speeds of the central processing units (“CPUs”) of these devices.
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`Apple’s software updates purposefully slowed or “throttled down” the performance speeds of
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`iPhone SEs, iPhone 5s, iPhone 6s, iPhone 7s and as yet unknown versions of iPhones because
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`iOS updates degraded performance within these model devices.
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`22.
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`Apple’s iOS updates purposefully failed to explain or otherwise disclose that the
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`slowdowns of the CPUs in older model devices and resulting lost or diminished operating
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`performance could be remedied by replacing the batteries of these devices, by avoiding the
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`download of iOS updates, or by Apple using a larger more suitable battery to begin with that did
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`not degrade within just one-year.
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`23.
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`Instead, as a result of Apple’s decision to purposefully slowdown or throttle down
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`these devices, consumers were fraudulently induced to purchase the latest iPhone versions such
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`as the iPhone 8 and iPhone X – which Apple touted as the world’s fastest phones.
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`B.
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`Apple Knew the Defective iPhones Were Not What It Represented
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`24.
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`Following significant examination and documentation by third parties, on
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`December 20, 2017, Apple has confirmed that its software does degrade the performance of
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`older iPhones. This is, according to the statement, undertaken in “a bid to deliver the best
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`experience for its customers”.
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`25.
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`In its official statement, Defendant stated:
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`Our goal is to deliver the best experience for customers, which
`includes overall performance and prolonging the life of their
`devices. Lithium-ion batteries become less capable of supplying
`peak current demands when in cold conditions, have a low battery
`charge or as they age over time, which can result in the device
`unexpectedly shutting down to protect its electronic components.
`Last year we released a feature for iPhone 6, iPhone 6s and iPhone
`SE to smooth out the instantaneous peaks only when needed to
`prevent the device from unexpectedly shutting down during these
`conditions. We’ve now extended that feature to iPhone 7 with iOS
`11.2, and plan to add support for other products in the future.
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`Defendant’s iOS updates never informed Plaintiffs and Class Members that
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`26.
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`Defendant was purposefully slowing down the operation of their devices. Apple never requested
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`consent; nor did Plaintiffs consent to Defendant slowing down their iPhones.
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`27. While Apple disputes that its action to purposefully degrade performance of older
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`model iPhones and conceal its misconduct was designed to promote the sales of newer model
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`iPhones, Apple’s software updates came out alongside its launch of newer iPhone models. Even
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`accepting Apple’s story as true, at the very same time it promoted its new iPhones as the fastest
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`in the world, it secretly slowed down older models.
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`28.
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`According to Apple, despite its sales pitch that Apple’s products are superior in
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`quality and performance, it knowingly designed and sold products at a substantial premium that
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`begin to fall apart after just one-year. This is not something buyers are warned about, and
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`consumers are not presented with options to fix it. Because of Apple’s concealment and deceit,
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`consumer’s only remedy was to buy a new more expensive phone.
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`29.
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`Apple should have designed phones that do not degrade this rapidly and it should
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`have let consumers know what was going on. There is already a low-power mode built into the
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`iPhone – Apple could have included a toggle to let more demanding iPhone owners turn off
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`processor throttling if they do not want it. And a simple popup after this feature is introduced or
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`enabled would go a long way toward letting iPhone owners understand what was going on.
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`Instead, Apple could have just made a slightly thicker iPhone with a bigger more suitable battery
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`in place of the defective battery Apple designed, installed, and sold to millions of consumers.
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`30.
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`Plaintiffs and Class Members were never given the option to bargain or choose
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`whether they preferred to have their iPhones slower than normal.
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`C.
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`Harm to Plaintiffs and Class Members
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`31. When Plaintiffs and Class Members bought their iPhones they were expecting
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`that their iPhones would work properly, and that the performance of their iPhones would not
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`slow down for unapparent reasons.
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`32.
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`Defendant’s intentional slowdown of the performance of older models of iPhones
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`greatly diminished the effectiveness, usefulness and utility of these devices.
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`33.
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`As a result of the slowdown of the performance of their older iPhone models,
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`Plaintiffs and Class Members bought newer iPhone models in order to have a properly
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`functioning smartphone and avoid the slowdown of their older iPhone models. Plaintiffs and
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`Class Members lost value of older iPhone models because of the slowdown of performance.
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`34.
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`The slowdown of older iPhone models was material in impact. If Plaintiffs and
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`Class Members knew that the performance of their iPhones would slow down after the
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`introduction of a new iPhone model or an iOS update, they would not purchase an iPhone. If
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`Plaintiffs and Class Members knew that the slow performance of their iPhones could be
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`remedied by purchasing a new battery, they would buy a new battery instead of a new iPhone
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`model. If Plaintiffs and Class Members knew that the slow performance of their iPhone could be
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`avoided by refusing to download the iOS update, they would not buy a new iPhone model.
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`35.
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`Defendant knew and intentionally failed to disclose that it was purposefully
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`slowing down the performance of older iPhones models and that the slowdown could be
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`remedied by purchasing a new battery, by avoiding to download the iOS update or otherwise.
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`36.
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`Prior to the purchase of their newer iPhone models, Defendant never informed
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`Plaintiffs and Class Members that the performance of their old iPhone models could be improved
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`by purchasing a new battery.
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`37.
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`Defendant knew how to remedy or avoid the slowdown of older iPhone models.
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`Defendant purposefully slowed down the speed of older iPhone models through unknown ways.
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`Defendant purposefully concealed and failed to disclose the fact that a battery replacement
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`would improve the performance of older iPhone models.
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`38.
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`As a direct and proximate result of Apple’s actions and omissions, Plaintiffs and
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`similarly situated consumers have been harmed, injured, and damaged. Plaintiffs and Class
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`Members are entitled to compensation, including:
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`i. Replacement of old phone;
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`ii. Loss of use;
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`iii. Loss of value;
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`iv. Purchase of new batteries;
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`v. Ascertainable losses in the form of deprivation of the value of their
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`iPhone; and
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`vi. Overpayments to Defendant for iPhones with defective batteries that
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`rapidly deteriorated and did not performing as promised by Apple.
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`V.
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`CLASS ACTION ALLEGATIONS
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`39.
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`Plaintiffs bring all claims as class claims under Rules 23(a) and (b)(3) of the
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`Federal Rules of Civil Procedure.
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`40.
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`Plaintiffs bring their claims on their own behalf, and on behalf of a proposed
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`nationwide class (“National Class”), defined as follows:
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`All United States residents who purchased iPhone models older than iPhone 8 and
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`iPhone X.
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`41.
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`In addition to the Nationwide Class, and pursuant to Federal Rule of Civil
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`Procedure Rule 23(c)(5), Plaintiffs seek to represent the following State Classes or subclasses, as
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`well as any subclasses or issue classes as Plaintiffs may propose and/or the Court may designate
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`at the time of class certification:
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`i. New Jersey State Class: All residents of the State of New Jersey who
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`purchased iPhone models older than iPhone 8 and iPhone X.
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`ii. Massachusetts State Class: All residents of the Commonwealth of
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`Massachusetts who purchased iPhone models older than iPhone 8 and
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`iPhone X.
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`42.
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`Plaintiffs reserve the right to modify or amend the definition of the proposed
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`classes before the Court determines whether certification is appropriate.
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`43.
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`The National Classes and the State Classes are referred to, collectively, as the
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`Classes.
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`44.
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`Excluded from the Classes are: the Defendant; any of its corporate affiliates; any
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`of its directors, officers, or employees; any persons who timely elects to be excluded from any of
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`the Classes; any government entities; and any judge to whom this case is assigned and his or her
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`immediate family, law clerks, and court staff.
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`45.
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`The Classes are so numerous that joinder of individual members thereof is
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`impracticable. Plaintiffs believe that there are millions of members throughout the United States.
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`The precise number and identities of Class Members are unknown to Plaintiffs, but are known to
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`Defendant or can be ascertained through discovery, using records of sales, warranty records, and
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`other information kept by Defendant or its agents.
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`46.
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`Common questions of law and fact exist as to all members of the Classes and, as
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`appropriate, the members of each Subclass. The questions of law and fact common to the
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`Classes include:
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`i. Whether Defendant’s iPhones are defective and the nature of that defect;
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`ii. Whether and when Defendant had knowledge of the defect in its iPhones;
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`iii. Whether Defendant concealed defects in its iPhones;
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`iv. Whether Defendant had a duty to disclose material facts to Plaintiffs and
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`the Classes regarding defects in its iPhones;
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`v. Whether Defendant’s omissions regarding the iPhones were likely to
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`deceive Plaintiffs and the Classes;
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`vi. Whether Defendant’s alleged conduct constitutes the use or employment
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`of an unconscionable commercial practice, deception, fraud, false
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`pretense, false promise and misrepresentation within the meaning of the
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`applicable state consumer fraud statutes;
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`vii. Whether Defendant has been unjustly enriched under applicable state
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`laws;
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`viii. Whether Defendant has violated its express warranties to Plaintiffs and the
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`Classes;
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`ix. Whether Defendant has violated the implied warranty of merchantability
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`under applicable state law;
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`x. Whether Defendant actively concealed the defect in order to maximize
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`profits to the detriment of Plaintiffs and the Classes;
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`xi. Whether Plaintiffs and the Class Members are entitled to damages,
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`restitution, disgorgement, equitable relief, or other relief; and
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`xii. The amount and nature of such relief to be awarded to Plaintiffs and the
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`Classes, including the appropriate class-wide measure of damages for the
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`Classes.
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`47.
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`The determination of the truth or falsity of these and other questions will resolve
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`an issue that is central to the validity of each one of the claims (depending on the cause of action
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`asserted) in one stroke. These and other questions will need to be answered in connection with
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`every Class Member’s claim (depending on the cause of action asserted). These questions will
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`generate common answers apt to drive the resolution of the litigation.
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`48.
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`Plaintiffs’ claims are typical of the claims of the absent members of the Classes
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`(and their respective Subclasses) because they arise from the same course of conduct by
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`Defendant and are based on the same legal theories as do the claims of all other members of each
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`of their respective Class or Subclass. Moreover, Plaintiffs seek the same forms of relief for
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`themselves as they do on behalf of absent Class Members.
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`49.
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`Plaintiffs will fairly and adequately protect the interests of the absent members of
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`the Classes. Because their claims are typical of the respective Class or Subclass that they seek to
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`represent, Plaintiffs have every incentive to pursue those claims vigorously. Plaintiffs’ interests
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`are coincident with, and not antagonistic to, those of the absent members of the Classes.
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`Moreover, Plaintiffs are represented by counsel competent and experienced in the prosecution of
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`class action and, in particular, consumer protection litigation.
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`50.
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`Certification of the Classes under Rule 23(b)(3) of the Federal Rules of Civil
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`Procedure is appropriate because the questions of law and fact common to the members of the
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`14
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`Classes set forth in the paragraph above predominate over any questions affecting only
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`individual members, including legal and factual issues relating to liability and damages.
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`51.
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`In addition, class action treatment under Rule 23(b)(3) is a superior method for
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`the fair and efficient adjudication of this controversy. Among other things, such treatment will
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`permit a large number of similarly situated persons to prosecute their common claims in a single
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`forum simultaneously, efficiently and without the unnecessary duplication of evidence, effort
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`and expense of numerous individual actions. Furthermore, although the damages suffered by
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`members of each of the proposed Classes are substantial in the aggregate, the damages to any
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`individual member of the proposed Classes would be insufficient to justify individually
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`controlling the prosecution of separate actions against Defendant. The benefits of proceeding on
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`a class-wide basis, including providing injured persons or entities with a method for obtaining
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`redress for claims that might not be practicable to pursue individually, substantially outweigh
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`any potential difficulties in managing this class action.
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`A.
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`Claims Brought on Behalf of the Nationwide Class.
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`VI. CAUSES OF ACTION
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`COUNT I
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`FRAUD AND FRAUDULENT CONCEALMENT
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`Plaintiffs reallege and incorporate the preceding paragraphs as if fully set forth
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`52.
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`herein.
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`53.
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`Plaintiffs bring this cause of action for themselves and on behalf of the
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`Nationwide Classes under the common law of fraud, which is materially uniform in all states. In
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`the alternative, Plaintiffs bring this claim on behalf of the State Classes.
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`54.
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`As described above, Defendant defrauded Plaintiffs and Class Members by
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`knowingly and intentionally misrepresenting to them and to the public at large that its defective
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`iPhones had superior design and quality, with unmatched performance; that its iOS updates were
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`designed to increase performance of their iPhones; and that each and every consumer should
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`“update” their iPhone to improve performance.
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`55.
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`As described above, Defendant carried out its fraudulent and deceptive conduct
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`through affirmative misrepresentations, omissions, suppressions, and concealments of material
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`fact to Plaintiffs and the Class Members, as well as to the public at large.
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`56.
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`These representations were false, as detailed above. Defendant knew that the
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`representations were false and acted with knowledge of their falsity intentionally to induce
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`Plaintiffs and Class Members to buy iPhones at a premium, as well as avoid Defendant’s
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`warranty obligations, and achieve windfall profits at the expense of Plaintiffs and all Class
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`Members.
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`57.
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`Plaintiffs and Class Members had no reasonable means of knowing that
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`Defendant’s representations were false and misleading.
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`58.
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`Defendant’s actions constitute actual fraud and deceit because Defendant did the
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`following with the intent to deceive Plaintiffs and Class Members and to induce them to enter
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`into purchasing defective iPhones:
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`a. Suggesting that the defective iPhones were far superior to anything on the market
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`with unmatched performance and quality, even though it knew this to be not true;
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`and
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`b. Positively asserting that the defective iPhones were far superior to anything on the
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`market with unmatched performance and quality, in a manner not warranted by
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`the information available to Defendant.
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`59.
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`Defendant’s misrepresentations were material in that they would affect a
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`reasonable consumer’s decision to purchase Defendant’s iPhones. Plaintiffs and Class Members
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`paid a premium for iPhones precisely because they purportedly offered superior quality and
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`performance than anything on the market. Whether Defendant’s iPhones were defective and
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`performance degraded within one-year would have been an important factor in Plaintiffs’ and the
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`Class Members’ decisions to purchase or obtain iPhones.
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`60.
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`Defendant also promoted iOS updates to the iPhone’s performance level with
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`knowledge that the upgrade was actually a downgrade.
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`61.
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`Defendant’s intentionally deceptive conduct
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`induced Plaintiffs and Class
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`Members to purchase defective iPhones and resulted in harm and damage to them.
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`62.
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`Plaintiffs believed and relied to their detriment upon Defendant’s affirmative
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`misrepresentations. Class Members are presumed to have believed and relied upon Defendant’s
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`misrepresentations because those facts are material to a reasonable consumer’s decision to
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`purchase iPhones.
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`63.
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`Defendant also fraudulently concealed and suppressed material facts regarding the
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`iPhones. Despite knowing about the iPhone’s rapid performance degradation, Defendant
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`continued to promote and tout its products as the fastest devices in the world. It knew when it
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`marketed and sold the iPhones that the batteries were inferior in composition and design and did
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`not have the superior performance Defendant represented. Defendant failed to disclose these
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`facts to consumers at the time they marketed and sold its iPhones. Defendant knowingly and
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`intentionally engaged in this concealment in order to boost sales and revenues, maintain its
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`competitive edge in the industry, and obtain windfall profits.
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`64.
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`Defendant also knew or should have known that its iOS updates and
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`accompanying “update” descriptions would be relied up on by Plaintiffs and Class Members.
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`65.
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`Plaintiffs and Class Members had no reasonable means of knowing that
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`Defendant’s representations were false and misleading, or that Defendant had omitted to disclose
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`material details relating to iPhones. Plaintiffs and Class Members did not and could not
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`reasonably discover Defendant’s concealment on their own.
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`66.
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`Defendant had a duty to disclose, rather than conceal and suppress, the full scope
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`and extent of the defects in its iPhones because:
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`a. Defendant had exclusive or far superior knowledge of the defect in the iPhones
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`and concealment thereof;
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`b. The details regarding the defect in the iPhones and concealment thereof were
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`known and/or accessible only to Defendant;
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`c. Defendant knew Plaintiffs and Class Members did n