Case 2:23-cv-00254 Document 1 Filed 01/13/23 Page 1 of 21 PageID #: 1
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`
`
`
`
`
`JOHN FARLEY, on behalf of himself and all
`others similarly situated,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`COMPLAINT -- CLASS ACTION
`
`DEMAND FOR JURY TRIAL
`
`Case No. 23-cv-254
`
`
`APPLE INC.,
`
`
`Defendant.
`
`
`Plaintiff John Farley (“Plaintiff”), on behalf of himself and all others similarly
`
`situated, brings this class action suit for damages and equitable relief against Defendant
`
`Apple Inc. (“Defendant” or “Apple”) and alleges the following based upon personal
`
`information and investigation, the investigation of his counsel, and on information and
`
`belief:
`
`NATURE OF THE ACTION
`This case relates to a flagrant violation of consumer privacy. Quite simply,
`
`1.
`
`Apple records consumers’ personal information and activity on its consumer mobile
`
`devices and applications (“apps”), even after consumers explicitly indicate through
`
`Apple’s mobile device settings that they do not want their data and information shared.
`
`This activity amounts to an enormous wealth of data that Apple collects and uses for its
`
`financial gain.
`
`2.
`
`Consumers care about keeping their data private and are demanding more
`
`control over their data. Consumers are also becoming increasingly concerned that their
`
`private information is being used without their knowledge or permission.
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF NEW YORK
`
`
`
`
`
`JOHN FARLEY, on behalf of himself and all
`others similarly situated,
`
`
`Plaintiff,
`
`v.
`
`
`
`
`COMPLAINT -- CLASS ACTION
`
`DEMAND FOR JURY TRIAL
`
`Case No. 23-cv-254
`
`
`APPLE INC.,
`
`
`Defendant.
`
`
`Plaintiff John Farley (“Plaintiff”), on behalf of himself and all others similarly
`
`situated, brings this class action suit for damages and equitable relief against Defendant
`
`Apple Inc. (“Defendant” or “Apple”) and alleges the following based upon personal
`
`information and investigation, the investigation of his counsel, and on information and
`
`belief:
`
`NATURE OF THE ACTION
`This case relates to a flagrant violation of consumer privacy. Quite simply,
`
`1.
`
`Apple records consumers’ personal information and activity on its consumer mobile
`
`devices and applications (“apps”), even after consumers explicitly indicate through
`
`Apple’s mobile device settings that they do not want their data and information shared.
`
`This activity amounts to an enormous wealth of data that Apple collects and uses for its
`
`financial gain.
`
`2.
`
`Consumers care about keeping their data private and are demanding more
`
`control over their data. Consumers are also becoming increasingly concerned that their
`
`private information is being used without their knowledge or permission.
`
`
`
`Case 2:23-cv-00254 Document 1 Filed 01/13/23 Page 2 of 21 PageID #: 2
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`3.
`
`As privacy concerns have grown, Apple has sought to position itself as a
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`leader by touting how its mobile devices allow users to control the information they share.
`
`For example, the “Apple Privacy Policy” states:
`
`At Apple, we respect your ability to know, access, correct, transfer,
`restrict the processing of, and delete your personal data.1
`(emphasis added).
`The Apple App Store “User Privacy and Data Use” page similarly declares:
`4.
`
`The App Store is designed to be a safe and trusted place for users to
`discover apps created by talented developers around the world. Apps
`on the App Store are held to a high standard for privacy,
`security, and content because nothing is more important than
`maintaining users’ trust.2
`(emphasis added).
`
`5.
`
`Apple even provides specific instructions to users to explain how to control
`
`what data Apple collects. Apple tells users to turn off “Allow Apps to Request to Track”
`
`if settings if they so wish.
`
`6.
`
`In addition, Apple makes an outright promise in its mobile devices’ settings:
`
`Apple states that it will “disable [the sharing of] Device Analytics altogether” if a
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`consumer toggles or turns off “Share iPad Analytics” on an iPad, or similar settings on
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`other Apple mobile devices, like the iPhone.3
`
`7.
`
`Yet, Apple does not honor users’ requests to restrict data sharing.
`
`
`1 https://www.apple.com/legal/privacy/pdfs/apple-privacy-policy-en-ww.pdf (last updated
`December 22, 2022)
`2 https://developer.apple.com/app-store/user-privacy-and-data-use/
`3 If a consumer has an Apple Watch paired to their iPhone, they must instead turn off
`the setting for “Share iPhone and Watch analytics” for the same effect. Hereinafter, this
`setting, across devices, will be referred to as “Share [Device] Analytics.”
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`8.
`
`A recent test performed by two independent app developers at the software
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`company Mysk revealed that even when consumers actively change their “privacy
`
`settings” and take Apple’s instructions to protect their privacy, Apple still records, tracks,
`
`collects, and monetizes consumers’ analytics data, including browsing history and
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`activity information. These experts and their testing further showed that Apple
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`continues to access consumers’ app usage, app browsing communications, and personal
`
`information in its proprietary apps, including the App Store, Apple Music, Apple TV,
`
`Books, and Stocks, even when consumers have affirmatively turned off “Allow Apps to
`
`Request to Track” and/or “Share [Device] Analytics” on their privacy controls.
`
`9.
`
`Gizmodo broke the story on the issue on November 8, 2022.4 The issue has
`
`been reported in multiple news outlets since Gizmodo’s report, including The Verge,
`
`Engadget, and Fox News.5 As of the date of this filing, Apple still has not responded to
`
`or publicly refuted the reports.
`
`10.
`
`Apple’s practices deceive consumers. Its practice of collecting the data of
`
`users who have specifically followed Apple’s instructions to disable data sharing violates,
`
`inter alia, New York General Business Law §§ 349 and 350.
`
`11.
`
`Plaintiff is an individual whose mobile app usage was tracked by Apple
`
`after he had affirmatively elected to turn off the “Allow Apps to Request to Track” and/or
`
`“Share [Device] Analytics” options.
`
`
`4 https://gizmodo.com/apple-iphone-analytics-tracking-even-when-off-app-store-
`1849757558.
`5 https://www.theverge.com/2022/11/21/23471827/apple-app-store-data-collection-
`analytics-personal-info-privacy; https://www.engadget.com/apple-phone-usage-data-not-
`anonymous-researchers-185334975.html; https://www.foxnews.com/tech/apple-iphone-
`data-not-as-anonymous-company-says-researchers.
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`Case 2:23-cv-00254 Document 1 Filed 01/13/23 Page 4 of 21 PageID #: 4
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`12.
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`Apple, through its tracking and hoarding of data, collected and monetized
`
`consumer information without Plaintiff’s and similarly situated consumers’ consent.
`
`13.
`
`Plaintiff seeks damages and equitable relief on behalf of himself and all
`
`other similarly situated Apple device users in New York (the “Class”), arising from
`
`Apple’s knowing and unauthorized copying, taking, use, and tracking of consumers’
`
`communications and activity, and its knowing and unauthorized invasion of consumer
`
`privacy.
`
`THE PARTIES
`Plaintiff John Farley is a resident of Shirley, New York. He owns an iPad.
`
`14.
`
`Previously, Mr. Farley owned an iPad Air and iPad Air 2. Plaintiff Farley regularly
`
`accesses Apple apps including the App Store, Apple Music, Maps, and Weather.
`
`Immediately after purchasing the iPad, during settings setup, Plaintiff turned off the
`
`“Allow Apps to Request to Track” and “Share iPad Analytics” options. Apple has
`
`nevertheless accessed his data while these features were turned off. An image of
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`Plaintiff’s iPad with these features turned off are below.
`
`
`15. Defendant Apple Inc. is incorporated in California and maintains its
`
`principal place of business at One Apple Park Way, Cupertino, CA 95014.
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`JURISDICTION AND VENUE
`This Court has subject matter jurisdiction pursuant to the Class Action
`
`16.
`
`Fairness Act, 28 U.S.C. § 1332(d)(2), because the aggregate amount in controversy
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`exceeds $5 million, exclusive of interests and costs; more than 100 class members are
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`involved; and members of the proposed Class are citizens of a different state (New York)
`
`than the Defendant (California).
`
`17.
`
`This Court has personal jurisdiction over Defendant Apple because
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`Defendant committed the tortious acts alleged herein in New York, regularly conducts
`
`business in this District, has extensive contacts with this forum, and because a
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`substantial part of the events or omissions giving rise to the claims asserted occurred in
`
`this District.
`
`18.
`
`Venue is proper in this Court pursuant to 28 U.S.C. § 1391 because a
`
`substantial part of the events or omissions giving rise to the claims occurred in this
`
`District, Defendant transacts substantial business in this District, and Plaintiff resides
`
`in this district.
`
`19.
`
`This Court has supplemental jurisdiction over the state law claims,
`
`pursuant to 28 U.S.C. § 1367.
`
`FACTUAL ALLEGATIONS
`
`A.
`
`Consumers have a reasonable expectation of privacy on their mobile
`devices.
`20. More than 1 billion consumers currently use iPhones, and over 1.9 billion
`
`iPhones have been sold. Apple’s iPhones make up over 23% of the global market share
`
`for smart phones. iPads make up an even larger share of their market. In the third
`
`quarter of 2022, Apple sold 142 million iPads, totaling 38% of the tablet market.
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`21. Mobile device users reasonably expect their activity will not be shared
`
`without affirmative consent.
`
`22.
`
`Tellingly, when Apple announced its operating system update in 2021 (i.e.,
`
`iOS and iPadOS 15.2), it introduced App Tracking Transparency, purportedly requiring
`
`all app developers to ask users for affirmative consent before tracking their activity
`
`through third-party apps and websites.6 In the United States, 94% of users said no.7
`
`“[W]hen given the choice, people would rather not be tracked.”8
`
`23.
`
`Apple has attempted to differentiate itself from its competitors by playing
`
`up its commitment to privacy.
`
`24.
`
`For instance, in an April 2021 white paper describing its privacy practices
`
`for iPads and iPhones, including its App Tracking Transparency framework, Apple stated
`
`that it ‘believes that privacy is a fundamental human right” and listed its privacy
`
`principles, including “Making sure that users know what data is shared and how it
`
`issued, and that they can exercise control over it”:9
`
`
`
`
`6 Jason Aten, Apple’s iOS 15.2 Is a Major Privacy Update That Lets You See How Apps
`Are Tracking You. It's Very Bad News for Facebook, Inc. (Dec. 14, 2021),
`https://www.inc.com/jason-aten/apples-ios-152-is-a-major-privacy-update-that-lets-you-
`see-how-apps-are-tracking-you-its-very-bad-news-for-facebook.html.; see also
`https://support.apple.com/en-us/HT212958; https://support.apple.com/en-us/HT212025.
`7 Rachel Kraus, After update, only 4 percent of iOS users in U.S. let apps track them,
`Mashable (May 7, 2021), https://mashable.com/article/ios-14-5-users-opt-out-of-ad-
`tracking.
`8 Id.
`9 https://www.apple.com/privacy/docs/A_Day_in_the_Life_of_Your_Data.pdf
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`Recently Apple launched a world-wide ad campaign, erecting 40-foot
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`25.
`
`billboards featuring the iPhone and a simple slogan, “Privacy. That’s iPhone.”10
`
`
`10 Apple and Privacy, Apple Insider, https://appleinsider.com/inside/apple-and-privacy.
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`26. Other billboards are similarly plastered with Apple’s purported
`
`commitment to privacy. “What happens on your iPhone, stays on your iPhone,”
`
`announced one billboard in Las Vegas.11 “Your iPhone knows a lot about you. But we
`
`don’t,” announced another in New York.12
`
`
`
`
`11 Hamza Shaban, Apple stars at giant tech confab CES — without actually being there,
`Washington Post (January 7, 2019)
`https://www.washingtonpost.com/technology/2019/01/07/apple-burns-google-giant-
`billboard-touting-privacy-ces.
`12 https://www.alamy.com/a-billboard-on-the-side-of-a-building-in-midtown-manhattan-
`on-tuesday-july-9-2019-informs-viewers-of-the-privacy-afforded-by-using-apple-devices-
`richard-b-levine-image260045682.html.
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`
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`27.
`
`In one Apple video advertisement in the same privacy campaign, a
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`consumer stumbles upon a “data auction” as the auctioneer pretends to offer up the
`
`various data that apps have collected about the consumer. “Her location data,” the
`
`auctioneer says as a map is placed on the block and offered to the audience. “It’s not data,
`
`it’s commerce! Do I hear 600? 620?” At the end, text on the screen says, “It’s your data.
`
`iPhone helps keep it that way.”13
`
`28.
`
`In another Apple advertisement, the narrator says, “Your information is for
`
`sale. You have become the product.” After introducing Apple’s privacy options, the
`
`
`13 https://youtu.be/NOXK4EVFmJY.
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`narrator says, “Whatever you choose is up to you… App Tracking Transparency. A simple
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`new feature that puts your data back in your control.”14
`
`29. More broadly, consumers are worried about their privacy online. According
`
`to Cisco, 86% of consumers say they care about data privacy and want more control over
`
`their data.15 Nearly half of those surveyed said they felt unable to protect their personal
`
`data—mainly because companies are not transparent about how they use consumer
`
`data.16 A study by Pew Research Center showed that 79% of Americans are concerned
`
`about the way their data is being used by companies.17
`
`30.
`
`Industry observers have
`
`introduced the concept of “surveillance
`
`capitalism,” speaking to “consumers’ increasing awareness that their data is bought, sold,
`
`and used without their consent—and their growing reluctance to put up with it.”
`
`31.
`
`In sum, while consumer data becomes more valuable to businesses,
`
`consumers are becoming more protective about businesses obtaining that data.18
`
`
`14 https://youtu.be/Ihw_Al4RNno.
`15 Consumer Privacy Study: Building Consumer Confidence Through Transparency and
`Control, Cisco (Sept. 29, 2021),
`https://www.cisco.com/c/dam/en_us/about/doing_business/trust-center/docs/cisco-
`cybersecurity-series-2021-cps.pdf.
`16 Id.
`17 Americans and Privacy: Concerned, Confused, and Feeling Lack of Control Over Their
`Personal Information, Pew Research Center, (Nov. 15, 2019),
`https://www.pewresearch.org/internet/2019/11/15/americans-and-privacy-concerned-
`confused-and-feeling-lack-of-control-over-their-personal-information.
`18 Hossein Rahnama & Alex “Sandy” Pentland, The New Rules of Data Privacy,
`Harvard Business Review (Feb. 25, 2022), https://hbr.org/2022/02/the-new-rules-of-
`data-privacy.
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`B.
`
`Apple secretly collects consumers’ personal information and tracks
`their mobile device and app activity.
`Apple surreptitiously tracks a wide range of consumer activity.
`32.
`
`33.
`
`Consumer “actions” that Defendant tracks include: (a) how a user initially
`
`found an app; (b) the duration a user looked at an app in the app store; (b) the user’s
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`searches in the app store; (c) the advertisements displayed to each user; and (d) which
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`apps the users clicked on.
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`34. Not only does the App Store send to Apple this individualized information
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`about users’ activities, it also shares the types of device used, and even data regarding
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`screen resolution and keyboard settings.
`
`35.
`
`Apple is also able to track user activity across its various apps, as the data
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`analytics it collects share user ID numbers.
`
`36.
`
`For instance, Apple “Stocks” shares a user’s private information relating to
`
`a user’s investment activities or preferences. It shares with Apple which stock the user
`
`is following or viewing. Apple even collects time-stamps on when the user is viewing
`
`certain stocks and engaging with the Stocks app.
`
`37.
`
`In addition, Apple collects the news articles that users see within their
`
`mobile device.
`
`38. Despite branding its products as designed to respect and protect users’
`
`privacy, Apple ignores users’ expressed preferences to keep their data private for their
`
`own profit. Apple misappropriates users’ information to make its advertising algorithms
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`more effective, which, in turn, generates Apple more revenue from advertisers.
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`39.
`
`In short, Apple cannot justify collecting private user data when users
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`expressly direct Apple not to do so by turning off “Allow Apps to Request to Track” and/or
`
`“Share [Device] Analytics.”
`
`40.
`
`Apple has not disclosed to users that it was continuing to track their private
`
`data, in direct contravention of the users’ requests—made using the very steps Apple
`
`instructs them to follow— that Apple not do so.
`
`41.
`
`Because of Apple’s deception and knowing concealment, any applicable
`
`statute of limitations has been tolled until only recently, when Plaintiff discovered his
`
`data was being tracked.
`
`CLASS ACTION ALLEGATIONS
`Plaintiff brings this action on behalf of himself and on behalf of the
`
`42.
`
`following proposed class:
`
`All individuals who, while using an Apple mobile device in
`New York, had their information tracked or used by Apple
`after turning off “Allow Apps to Request to Track,” “Share
`iPad Analytics,” “Share iPhone Analytics” and/or any
`other similar setting on an Apple mobile device that
`purported to stop Apple from collecting mobile app activity.
`Excluded from the proposed Class are Apple, its parents, subsidiaries,
`
`43.
`
`affiliates, officers, and directors, any entity in which Apple has a controlling interest.
`
`44.
`
`Plaintiff reserves the right to re-define any of the class definitions prior to
`
`class certification and after having the opportunity to conduct discovery.
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`45.
`
`The claims of all class members derive directly from a single course of
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`conduct by Apple. Apple has engaged and continues to engage in uniform and
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`standardized conduct toward the putative class members.
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`46.
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`Certification of Plaintiff’s claims is appropriate because the elements of
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`each of Plaintiff’s claims can be proven (or disproven) on a class-wide basis using the
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`common evidence.
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`47.
`
`Accordingly, Plaintiff brings this lawsuit as a class action on Plaintiff’s own
`
`behalf and on behalf of all other business, entities, and individuals similarly situated
`
`pursuant under Fed. R. Civ. P. 23. This action satisfies the numerosity, commonality,
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`typicality, adequacy, predominance, and superiority requirements of Rule 23.
`
`48. Numerosity (Fed. R. Civ. P. 23(a)(1)). The members of the proposed Class
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`are each so numerous that their individual joinder would be impracticable. While the
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`exact number is not known at this time, it is generally ascertainable by appropriate
`
`discovery, and it is believed each Class includes many hundreds of thousands of
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`members, if not more. The precise number of class members, and their addresses, are
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`unknown to Plaintiff at this time but can be ascertained from Defendant’s records.
`
`49. Commonality and Predominance (Fed. R. Civ. P. 23(a)(2); 23(b)(3)).
`
`Common questions of law and fact exist as to all class members. These questions
`
`predominate over the questions affecting only individual class members. The common
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`legal and factual questions include, without limitation:
`
`(a)
`
`whether Defendant collected or tracked mobile user information and
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`data without the class members’ consent;
`
`(b)
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`whether Plaintiff and the Class are entitled to actual, compensatory,
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`nominal, statutory, enhanced, and/or punitive damages, and if so in
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`what amount; and
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`(c)
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`whether Plaintiff and the Class are entitled to injunctive,
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`declaratory relief, or other equitable relief.
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`50.
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`Typicality of Claims (Fed. R. Civ. P. 23(a)(3)). The claims of the Plaintiff
`
`and the putative class members are based on the same legal theories and arise from the
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`same unlawful and willful conduct of Defendant, resulting in the same injury to the
`
`Plaintiff and the class members. Plaintiff and all class members are similarly affected by
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`Defendant’s wrongful conduct, were damaged in the same way, and seek the same relief.
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`Plaintiff’s interests coincide with, and are not antagonistic to, those of the other class
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`members. Plaintiff has been damaged by the same wrongdoing set forth in this
`
`Complaint.
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`51. Adequacy of Representation (Fed. R. Civ. P. 23(a)(4)). Plaintiff is an
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`adequate representative of the Class because his interests do not conflict with the
`
`interests of the class members, and he has retained counsel competent and experienced
`
`in complex class action, business competition, and consumer privacy litigation. Plaintiff
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`and his counsel will fairly and adequately protect the interest of the class members.
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`52.
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`Superiority of a Class Action (Fed. R. Civ. P. 23(b)(3)). A class action is
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`superior to other available means for the fair and efficient adjudication of the claims of
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`Plaintiff and class members. There is no special interest in class members individually
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`controlling the prosecution of separate actions. The damages suffered by individual class
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`members, while significant, are small given the burden and expense of individual
`
`prosecution of the complex and extensive litigation necessitated by Defendant’s conduct.
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`Further, it would be virtually impossible for the class members individually to redress
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`effectively the wrongs done to them. And, even if class members themselves could afford
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`such individual litigation; the court system could not, given the thousands or even
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`millions of cases that would need to be filed. Individualized litigation would also present
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`a potential for inconsistent or contradictory judgments. Individualized litigation would
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`increase the delay and expense to all parties and the court system, given the complex
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`legal and factual issues involved. By contrast, the class action device presents far fewer
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`management difficulties and provides the benefits of single adjudication, economy of
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`scale, and comprehensive supervision by a single court.
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`53. Risk of Inconsistent or Dispositive Adjudications and the
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`Appropriateness of Final Injunctive or Declaratory Relief (Fed. R. Civ. P. 23(b)(1)
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`and (2)). In the alternative, this action may properly be maintained as a class action,
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`because:
`
`(a)
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`the prosecution of separate actions by individual class members
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`would create a risk of inconsistent or varying adjudication with respect to individual class
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`members, which would establish incompatible standards of conduct for Defendant; or
`
`(b)
`
`the prosecution of separate actions by individual class members
`
`would create a risk of adjudications with respect to individual class members which
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`would, as a practical matter, be dispositive of the interests of other class members not
`
`parties to the adjudications, or substantially impair or impede their ability to protect
`
`their interests; or
`
`(c)
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`Defendant has acted or refused to act on grounds generally
`
`applicable to the Class, thereby making appropriate final injunctive or corresponding
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`declaratory relief with respect to the Class as a whole.
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`FIRST CAUSE OF ACTION
`Violation of the New York Deceptive and
`Unfair Trade Practices Act, N.Y. Gen. Bus. Law § 349
`(On Behalf of Plaintiff and the Class)
`Plaintiff incorporates by reference all allegations in this Complaint and
`
`54.
`
`restates them as if fully set forth herein.
`
`55. NY GBL § 349 declares unlawful “[d]eceptive acts or practices in the
`
`conduct of any business, trade or commerce or in the furnishing of any service in this
`
`state.”
`
`56.
`
`Any person who has been injured by reason of any violation of NY GBL
`
`§ 349 may bring an action in his or her own name to enjoin such unlawful acts or
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`practices, an action to recover their actual damages or fifty dollars, whichever is greater,
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`or both such actions. The court may, in its discretion, increase the award of damages to
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`an amount not exceeding three times the actual damages, in addition to one thousand
`
`dollars per violation, if the court finds that the Defendant willfully or knowingly violated
`
`this section. The court may award reasonable attorneys’ fees to a prevailing plaintiff.
`
`57. Defendant violated NY GBL § 349 by representing that its mobile devices
`
`enable users to choose settings that would stop Defendant from collecting or tracking
`
`their private data—a feature they do not have—and engaging in deceptive conduct which
`
`creates a likelihood of confusion or misunderstanding about privacy settings on
`
`Defendant’s mobile devices.
`
`58. Defendant’s deceptive acts and practices, and misrepresentations and
`
`omissions, have deceived Plaintiff and the Class.
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`- 16 -
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`Case 2:23-cv-00254 Document 1 Filed 01/13/23 Page 17 of 21 PageID #: 17
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`59. Defendant’s conduct has caused and is causing immediate and irreparable
`
`injury to Plaintiff and the Class will continue to damage both Plaintiff and the Class
`
`unless enjoined by this Court.
`
`SECOND CAUSE OF ACTION
`False Advertising in Violation of
` N.Y. Gen. Bus. Law § 350
`(On Behalf of Plaintiff and the Class)
`Plaintiff incorporates by reference all allegations in this Complaint and
`
`60.
`
`restates them as if fully set forth herein.
`
`61.
`
`By reason of the acts set forth above, Defendant has been and is engaged
`
`in consumer-oriented advertising and marketing against Plaintiff and the Class,
`
`engaging in business conduct that is false and misleading in material respects, in
`
`violation of NY GBL § 350, which provides, in part, that “[f]alse advertising in the
`
`conduct of any business, trade or commerce or in the furnishing of any service in this
`
`state is hereby declared unlawful.”
`
`62. Defendant caused to be disseminated throughout New York State and
`
`elsewhere, through advertising, marketing, and other publications, statements that were
`
`untrue or misleading, and which it knew to be untrue or misleading.
`
`63. Defendant’s misrepresentations were material and substantially uniform
`
`in content, presentation, and impact upon consumers at large. Consumers were and
`
`continue to be exposed to Defendant’s material misrepresentations.
`
`64.
`
`Pursuant to NY GBL § 350-e, Plaintiff and the Class seek monetary
`
`damages (including actual damages or $500, whichever is greater, and minimum,
`
`punitive, or treble and/or statutory damages pursuant to NY GBL § 350-a(1)), injunctive
`
`- 17 -
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`
`
`Case 2:23-cv-00254 Document 1 Filed 01/13/23 Page 18 of 21 PageID #: 18
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`relief, restitution, and disgorgement of all monies obtained by means of Defendant’s
`
`unlawful conduct, interest, and attorneys’ fees and costs.
`
`65. Defendant’s deceptive acts and practices, and misrepresentations and
`
`omissions, have deceived Plaintiff and the Class.
`
`66. Defendant’s conduct has caused and is causing immediate and irreparable
`
`injury to Plaintiff and the Class will continue to damage both Plaintiff and the Class
`
`unless enjoined by this Court.
`
`THIRD CAUSE OF ACTION
`Breach of Implied Contract
`(On Behalf of Plaintiff and the Class)
`Plaintiff incorporates by reference all allegations in this Complaint and
`
`67.
`
`restates them as if fully set forth herein.
`
`68.
`
`Plaintiff and Apple entered into a contract for the sale of an Apple mobile
`
`device.
`
`69.
`
`As part of that agreement, and by providing consumers with the ability to
`
`turn off the “Allow Apps to Request to Track,” “Share iPad Analytics,” and similar
`
`settings, Apple impliedly promised that it would not continue to track consumer use once
`
`a given consumer had turned off that feature.
`
`70.
`
`By continuing to track consumers who turned off these settings, Apple
`
`breached that implied contract.
`
`71.
`
`Apple’s breach of this implied contract caused damages to Plaintiff and
`
`similarly situated class members, including nominal damages and other damages to be
`
`determined at trial.
`
`- 18 -
`
`
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`Case 2:23-cv-00254 Document 1 Filed 01/13/23 Page 19 of 21 PageID #: 19
`
`FOURTH CAUSE OF ACTION
`Unjust Enrichment
`(On Behalf of Plaintiff and the Class)
`Plaintiff incorporates by reference all allegations in this Complaint and
`
`72.
`
`restates them as if fully set forth herein. This claim is pled in the alternative to the
`
`contract-based claim.
`
`73.
`
`Plaintiff and class members conferred a tangible and material economic
`
`benefit upon Defendant. Despite branding itself as a company that respects privacy and
`
`offers consumers the ability to prevent data tracking, Defendant nonetheless collected
`
`Plaintiff’s and the class members’ private data.
`
`74. Defendant was unjustly enriched thereby, using Plaintiff’s and the class
`
`members’ data to enhance advertising revenue and its products.
`
`75. Defendant’s retention of the benefit conferred upon them by Plaintiff and
`
`the Class would be unjust and inequitable.
`
`
`
`PRAYER FOR RELIEF
`WHEREFORE, Plaintiff, on behalf of himself and the proposed Class, prays for
`
`relief and judgment against Defendant as follows:
`certifying the Class pursuant to Rule 23 of the Federal Rules of Civil
`A.
`
`Procedure, appointing Plaintiff as representatives of the Class, and
`
`designating Plaintiff’s counsel as Class Counsel;
`
`B.
`
`C.
`
`declaring that Defendant’s conduct violates the laws referenced herein;
`
`finding in favor of Plaintiff and the Class on all counts asserted herein;
`
`- 19 -
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`
`
`Case 2:23-cv-00254 Document 1 Filed 01/13/23 Page 20 of 21 PageID #: 20
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`D.
`
`awarding Plaintiff and the Class compensatory damages and actual
`
`damages, trebled, in an amount exceeding $5,000,000, to be determined by
`
`proof;
`
`E.
`
`awarding Plaintiff and the Class appropriate relief, including actual,
`
`F.
`
`G.
`
`H.
`
`nominal and statutory damages;
`
`awarding Plaintiff and the Class punitive damages;
`
`awarding Plaintiff and the Class civil penalties;
`
`granting Plaintiff and the Class declaratory and equitable relief, including
`
`restitution and disgorgement;
`
`I.
`
`enjoining Defendant from continuing to engage in the wrongful acts and
`
`practices alleged herein;
`
`J.
`
`awarding Plaintiff and the Class the costs of prosecuting this action,
`
`including expert witness fees;
`
`K.
`
`awarding Plaintiff and the Class reasonable attorneys’ fees and costs as
`
`allowable by law;
`
`L.
`
`M.
`
`awarding pre-judgment and post-judgment interest; and
`
`granting any other relief as this Court may deem just and proper.
`
`
`
`
`
`- 20 -
`
`
`
`Case 2:23-cv-00254 Document 1 Filed 01/13/23 Page 21 of 21 PageID #: 21
`
`JURY TRIAL DEMANDED
`Plaintiff hereby demands a trial by jury on all issues so triable.
`
`Dated: January 13, 2023
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`By: /s/ Raphael Janove
`Raphael Janove
`Adam Pollock
`POLLOCK COHEN LLP
`111 Broadway, Suite 1804
`New York, NY 10006
`(212) 337-5361
`Rafi@PollockCohen.com
`Adam@PollockCohen.com
`
`Tina Wolfson (NY Bar No. 5436043)
`AHDOOT & WOLFSON, PC
`125 Maiden Lane, Suite 5C
`New York, NY 10038
`(310) 474-9111
`twolfson@ahdootwolfson.com
`
`Andrew Ferich (pro hac vice
`forthcoming)
`AHDOOT & WOLFSON, PC
`201 King of Prussia Road, Suite 650
`Radnor, PA 19087
`(310) 474-9111
`aferich@ahdootwolfson.com
`
`Jonathan Shub (pro hac vice
`forthcoming)
`Benjamin F. Johns (pro hac vice
`forthcoming)
`SHUB LAW FIRM LLC
`134 Kings Highway E.
`Haddonfield, NJ 08033
`(856) 772-7200
`jshub@shublawyers.com
`bjohns@shublawyers.com
`
`Attorneys for Plaintiff
`
`- 21 -
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`
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