Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`Antoinette Smith, individually and on behalf of
`all others similarly situated,
`
`1:21-cv-03657
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Apple Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
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`1. Apple Inc. (“defendant”) manufactures, markets and sells smartphones under the
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`iPhone brand, purporting to be capable of sustaining limited contact and/or immersion in water for
`
`finite period of time (“Products”).
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`I. Importance of Water Resistance Feature
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`2. According to reports, the number of smartphones offering resistance against damage
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`from water and other liquids has grown 45% since 2016, while non-water-resistant smartphones
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`have declined 16%.
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`3. Approximately 100,000 smartphones are damaged by water or other liquids every
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`day in the United States.
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`4.
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`The costs are significant to users, who must repair or replace expensive devices, and
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`to the environment, when a device is discarded.
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`5.
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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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`6. With increasing adoption and usage of smartphones, there is a greater risk of
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF NEW YORK
`
`Antoinette Smith, individually and on behalf of
`all others similarly situated,
`
`1:21-cv-03657
`
`Plaintiff,
`
`
`
`- against -
`
`Class Action Complaint
`
`Apple Inc.,
`
`
`
`Defendant
`
`Jury Trial Demanded
`
`Plaintiff alleges upon information and belief, except for allegations pertaining to plaintiff,
`
`which are based on personal knowledge:
`
`1. Apple Inc. (“defendant”) manufactures, markets and sells smartphones under the
`
`iPhone brand, purporting to be capable of sustaining limited contact and/or immersion in water for
`
`finite period of time (“Products”).
`
`I. Importance of Water Resistance Feature
`
`2. According to reports, the number of smartphones offering resistance against damage
`
`from water and other liquids has grown 45% since 2016, while non-water-resistant smartphones
`
`have declined 16%.
`
`3. Approximately 100,000 smartphones are damaged by water or other liquids every
`
`day in the United States.
`
`4.
`
`The costs are significant to users, who must repair or replace expensive devices, and
`
`to the environment, when a device is discarded.
`
`5.
`
`This “hidden tax” due to the inability to withstand even minimal contact and
`
`immersion in water costs American consumers over $10 billion each year.
`
`6. With increasing adoption and usage of smartphones, there is a greater risk of
`
`
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 2 of 13
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`accidents.
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`7.
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`8.
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`In fact, accidental damage is responsible for 95% of smartphone failures.
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`35% of all smartphone failures are due to liquid damage, such as accidental and
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`temporary contact and/or immersion in water.
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`9.
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`Recognizing
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`the
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`importance of water-protective features,
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`the International
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`Electrotechnical Commission (“IEC”) developed ingress protection (“IP”) standards.
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`10. This allows manufacturers of electronics to certify to purchasers that their devices
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`are capable of varying levels of resistance to dust and water, i.e., IP68.
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`11. The first digit (“6”) corresponds to dust protection and the second (“8”) to water
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`protection.
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`12. While Apple has been at the forefront of many smartphone innovations, its adoption
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`of water-protection features came after the success of Samsung and Huawei devices introduced
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`these features.
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`II. Defendant’s Promotion of Water-Resistant Attributes of the iPhone
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`13. Since the introduction of the iPhone 7 in 2016, defendant has marketed its devices as
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`offering no less than “IP67” protection.
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`14. The iPhone 8 is rated IP67, promising water resistance to a depth of 1 meter for up
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`to 30 minutes.
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`15. The iPhone 11 Pro and iPhone 11 Pro Max are rated IP68 under IEC standard 60529,
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`promising water resistance to a depth of 4 meters for up to 30 minutes.
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`16. At its release, the iPhone 11 was described by defendant as the most water-resistant
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`iPhone, that was not afraid of splashes or even dips, resistant to double the depth of the prior
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`iPhone.
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`2
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 3 of 13
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`17. The iPhone 12 models are rated IP68 under IEC standard 60529, promising water
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`resistance to a depth of 6 meters for up to 30 minutes.
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`18. Defendant’s marketing and advertising emphasize the water-resistance and
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`impermeability of the devices to water by showing them being splashed, immersed in water and/or
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`hit with powerful jets of water.
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`19. The promotion of the Products’ water-resistant qualities is insufficiently qualified by
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`fine print disclaimers.
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`20. First, the IP certification levels are based on highly controlled laboratory conditions,
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`with static and pure water.
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`21.
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`In everyday usage, the water devices encounter is not static and purified, but contains
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`various minerals, chemicals and other elements.
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`22. This means that consumers who stand at the edge of a pool or ocean and whose
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`devices are splashed or temporarily immersed, will be denied coverage, because the water
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`contained chlorine or salt.
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`23. Second, defendant’s disclaimers – in print, television and online – purport to limit
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`the Products’ one-year warranty to exclude damage caused by liquids.
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`Splash, drop, and dust resistance are not a permanent feature and may decrease with
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`normal wear. Don't try to charge your iPhone when it's wet; consult the manual to
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`clean and dry it. The warranty does not cover damage proven by liquids.
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`24. When a user seeks coverage under the warranty based on the “water-resistant”
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`attributes of the device, the first step will verify if the liquid contact indicator (“LCI”) has turned
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`red, a sign that liquid has entered the device.
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`3
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 4 of 13
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`25. There is no inquiry into whether the triggering of the LCI was due to “unauthorized
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`or improper use.”
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`26. Defendant’s water-resistant representations include resistance to accidental spills
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`from common liquids, such as soda, beer, coffee, tea and fruit juices.
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`27.
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`In the event of such a spill, defendant instructs users to rinse the affected area of their
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`device.
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`28. However, defendant will often use the rinsing of the device as a pretext to deny
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`coverage, even though it explicitly instructs users to take this step.
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`29. Defendant’s attempts to disclaim coverage through the fine print of its terms and
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`conditions which exclude repair when damage is due to contact and/or immersion with water,
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`according to the specific IP level of the device, is unconscionable and deceptive, considering its
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`marketing of the devices as “water-resistant.”
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`30. Defendant’s marketing and advertising make general claims that are applicable to a
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`range of devices, even though the specific models vary with respect to their IP level.
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`31. The vast majority of iPhones sent for service related to potential liquid damage were
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`not repaired under the warranty and costs were charged to consumers.
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`32. No mechanisms exist for users to contest defendant’s conclusions that their devices
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`were subject to improper usage in sustaining apparent water damage.
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`III. Conclusion
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`33. Reasonable consumers viewing defendant’s marketing and advertising of the
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`Products’ water-resistant qualities will expect they can sustain contact with water through splashes
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`and/or immersions, in accordance with the IP certification level of their device.
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`4
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 5 of 13
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`34. Defendant fails to clarify the differences between water-proof and water-resistant,
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`and its marketing and promotions conflate the two in the perceptions of consumers.
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`35. This is due in part to the emphasis on maximum depth and the time limit the devices
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`are capable of “resisting” – avoiding harm from – water.
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`36. Reasonable consumers are unable to perceive the artificial distinction that defendant
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`has established between water resistant and impermeable to water (“waterproof”).
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`37. Technology exists and is feasible to waterproof defendant’s smartphones, but they
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`know that when a consumer has a damaged phone, they will have no choice but to buy a new one
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`or pay for costly repair services.
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`38. Reasonable consumers must and do rely on defendant to honestly describe the
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`components and features of the Products.
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`39. Defendant misrepresented the Product through affirmative statements, half-truths,
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`and omissions.
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`40. Defendant sold more of the Products and at a higher prices than it would have in
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`absence of this misconduct, resulting in additional profits at the expense of consumers.
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`41. Had Plaintiff and proposed class members known the truth, they would not have
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`bought the Product or would have paid less for it.
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`42. Plaintiff paid more for the Product based on the representations than she would have
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`otherwise paid.
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`43. As a result of the false and misleading representations, the Products are sold at
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`premium prices.
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`44. At the time the iPhone 8 was released, it cost upwards of $1000.
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`45. The iPhone 12 Pro Max costs over $1500.
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`5
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 6 of 13
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`46. Average smartphones cost several hundred dollars.
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`47. The newest iPhones regularly cost more compared to other similar top-of-the-line
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`smartphones, represented in a non-misleading way, regarding their resistance to water and liquid
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`contact, and higher than they would be sold for absent the misleading representations and
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`omissions.
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`Jurisdiction and Venue
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`48.
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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).
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`49. Plaintiff Antoinette Smith is a citizen of New York.
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`50. Defendant Apple Inc. is a California agricultural cooperative corporation with a
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`principal place of business in Cupertino, Santa Clara County, California.
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`51. Diversity exists because plaintiff Antoinette Smith and defendant are citizens of
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`different states.
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`52. Upon information and belief, sales of the Products and any available statutory and
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`other monetary damages, exceed $5 million during the applicable statutes of limitations, exclusive
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`of interest and costs.
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`53. Venue is proper because a substantial part of the events or omissions giving rise to
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`the claim occurred here – the purchase of plaintiff and her experiences identified here.
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`Parties
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`54. Plaintiff Antoinette Smith is a citizen of Bronx, Bronx County, New York.
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`55. Defendant Apple Inc. is a California corporation with a principal place of business
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`in Cupertino, California, Santa Clara County.
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`6
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 7 of 13
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`56. Defendant markets, distributes, and sells the iPhone, the leading mobile smartphone
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`in the world.
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`57. The iPhone has changed the way people access information and communicate, and
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`caused changes in numerous industries, i.e., private car services.
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`58. Plaintiff Smith bought the iPhone 8, marketed as water-resistant, directly from
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`defendant.
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`59. Plaintiff Smith’s iPhone 8 experienced contact and/or immersion with water
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`consistent with the IP rating of her device and consistent with how the water-resistant attributes
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`were presented in the marketing and advertising of the device.
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`60. Plaintiff Smith’s device was not water resistant as exposure to water of the type and
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`manner contemplated by the device’s IP level caused damage to her device.
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`61. Plaintiff Smith presented to defendant for coverage for her device which had
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`sustained water contact and/or immersion of the type associated with the device’s IP rating.
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`62. Defendant denied coverage for Plaintiff Smith’s device, forcing her to incur financial
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`loss through repair costs, decreased functionality, a lower re-sale value, and/or purchase of a new
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`device.
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`63. Plaintiff bought the device because she uses a smartphone every day and like most
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`smartphone users, her device may experience limited water contact and/or immersion.
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`64. The representations concerning water resistance were a major selling point.
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`65. Plaintiff would not have purchased the Product in the absence of Defendant’s
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`misrepresentations and omissions.
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`66. The Products were worth less than what Plaintiff and consumers paid and she would
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`not have paid as much absent Defendant's false and misleading statements and omissions.
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`7
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 8 of 13
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`67. Plaintiff intends to, seek to, and will purchase the Product again when she can do so
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`with the assurance that Product’s representations about its ability to withstand contact with water
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`are consistent with the typical, everyday usage of smartphone users, instead of based on controlled
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`laboratory conditions.
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`Class Allegations
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`68. The class will consist of all purchasers of the Products who reside in New York
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`during the applicable statutes of limitations.
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`69. Plaintiff seeks class-wide injunctive relief based on Rule 23(b) in addition to a
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`monetary relief class.
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`70. Common questions of law or fact predominate and include whether defendant’s
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`representations were and are misleading and if plaintiff and class members are entitled to damages.
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`71. Plaintiff's claims and basis for relief are typical to other members because all were
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`subjected to the same unfair and deceptive representations and actions.
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`72. Plaintiff is an adequate representative because her interests do not conflict with other
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`members.
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`73. 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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`74.
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`Individual actions would risk inconsistent results, be repetitive and are impractical
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`to justify, as the claims are modest relative to the scope of the harm.
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`75. Plaintiff's counsel is competent and experienced in complex class action litigation
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`and intends to protect class members’ interests adequately and fairly.
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`76. Plaintiff seeks class-wide injunctive relief because the practices continue.
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`8
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 9 of 13
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`New York General Business Law (“GBL”) §§ 349 & 350
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`(Consumer Protection Statute)
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`77. Plaintiff incorporates by reference all preceding paragraphs.
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`78. Plaintiff and class members desired to purchase a smartphone that was resistant
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`and/or impermeable to water in the manner exhibited by the marketing and promotion for the
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`Products and consistent with the IP levels of their devices.
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`79. Defendant’s denials of the warranty claims made by plaintiff and consumers were
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`made in bad faith, especially because the Products were marketed as having various degrees of
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`resistance and impermeability to water.
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`80. Defendant’s false and deceptive representations and omissions are material in that
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`they influenced purchasing decisions.
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`81. Defendant misrepresented the Products through statements, omissions, ambiguities,
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`half-truths and/or actions.
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`82. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Breaches of Express Warranty,
`Implied Warranty of Merchantability and
`Magnuson Moss Warranty Act, 15 U.S.C. §§ 2301, et seq.
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`83. The Product was manufactured, labeled and sold by defendant and expressly and
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`impliedly warranted to plaintiff and class members that it possessed protective and resistant
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`qualities with respect to waters and liquids which it did not.
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`84. Defendant had a duty to disclose and/or provide non-deceptive descriptions and
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`marketing of the Products and honor its warranties.
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 10 of 13
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`85. This duty is based on Defendant’s outsized role in the market for this type of Product
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`– one of the world’s biggest companies and a known leader in innovation and customer
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`satisfaction.
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`86. Plaintiff provided or will provide notice to defendant, its agents, representatives,
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`retailers and their employees.
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`87. Defendant received notice and should have been aware of these issues due to
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`complaints by regulators, competitors, and consumers, to its main offices over the past several
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`years.
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`88.
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`In November 2020, the Italian Competition Authority (“AGCM”) fined Apple 10
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`million euros (around $12 million) for making misleading claims about the water-resistant and
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`implied waterproof attributes of its iPhones, starting with the iPhone 8 and 8 Plus, in 2017. 1
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`89. The AGCM’s investigation commenced at least a year and a half prior to the recent
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`decision, and defendant was aware that consumers, such as plaintiff, were misled through the
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`promotion of the Products as water-resistant and impermeable to water to various depths for
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`different periods of time.
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`90. The Products did not conform to their affirmations of fact and promises due to
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`defendant’s actions and were not merchantable because they were not fit to pass in the trade as
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`advertised.
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`91. Plaintiff and class members would not have purchased the Product or paid as much
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`if the true facts had been known, suffering damages.
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`Negligent Misrepresentation
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`92. Defendant had a duty to truthfully represent the Products, which it breached.
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`1 Autorità Garante della Concorrenza e del Mercato or AGCM.
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`10
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 11 of 13
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`93. This duty is based on defendant’s position, holding itself out as having special
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`knowledge and experience in the sale of the product type – the leading smartphone company which
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`introduced the iconic iPhone.
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`94. Defendant promotes itself as a “good” corporate citizen not only concerned with
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`maximizing shareholder profits but “playing fair” with its customers.
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`95. The representations took advantage of consumers’ cognitive shortcuts made at the
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`point-of-sale and their trust in defendant.
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`96. Plaintiff reasonably and justifiably relied on these negligent misrepresentations and
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`omissions, which served to induce and did induce, their purchases of the Products.
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`97. Plaintiff and class members would not have purchased the Products or paid as much
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`if the true facts had been known, suffering damages.
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`Fraud
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`98. Defendant misrepresented and/or omitted the attributes and qualities of the Products.
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`99. Defendant’s fraudulent intent is evinced by its failure to accurately disclose these
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`issues when it knew not doing so would mislead consumers.
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`Unjust Enrichment
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`100. Defendant obtained benefits and monies because the Products were not as
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`represented and expected, to the detriment and impoverishment of plaintiff and class members,
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`who seek restitution and disgorgement of inequitably obtained profits.
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`Jury Demand and Prayer for Relief
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`Plaintiff demands a jury trial on all issues.
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` WHEREFORE, Plaintiff prays for judgment:
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`1. Declaring this a proper class action, certifying plaintiff as representative and the
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`undersigned as counsel for the class;
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`11
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 12 of 13
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`2. Entering preliminary and permanent injunctive relief by directing defendant to correct the
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`challenged practices to comply with the law;
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`3. Injunctive relief to remove, correct and/or refrain from the challenged practices and
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`representations, and restitution and disgorgement for members of the class pursuant to the
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`applicable laws;
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`4. Awarding monetary damages, statutory damages pursuant to any statutory claims and
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`interest pursuant to the common law and other statutory claims;
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`5. Awarding costs and expenses, including reasonable fees for plaintiff's attorneys and
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`experts; and
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`6. Other and further relief as the Court deems just and proper.
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`Dated: April 24, 2021
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`Respectfully submitted,
`
`Sheehan & Associates, P.C.
`/s/Spencer Sheehan
`Spencer Sheehan
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`spencer@spencersheehan.com
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`12
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`Case 1:21-cv-03657 Document 1 Filed 04/24/21 Page 13 of 13
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`1:21-cv-03657
`United States District Court
`Southern District of New York
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`Plaintiff,
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`Antoinette Smith, individually and on behalf of all others similarly situated,
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`
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` - against -
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`Apple Inc.,
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` Defendant
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`Class Action Complaint
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`Sheehan & Associates, P.C.
`60 Cuttermill Rd Ste 409
`Great Neck NY 11021-3104
`Tel: (516) 268-7080
`Fax: (516) 234-7800
`
`
`
`
`
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`Pursuant to 22 NYCRR 130-1.1, the undersigned, an attorney admitted to practice in the courts of
`New York State, certifies that, upon information, and belief, formed after an inquiry reasonable
`under the circumstances, the contentions contained in the annexed documents are not frivolous.
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`Dated: April 24, 2021
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` /s/ Spencer Sheehan
` Spencer Sheehan
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