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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`FILED
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`SEP 13 2023
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`No. 22-16164
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`D.C. No. 5:18-cv-00147-EJD
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`MEMORANDUM*
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` Plaintiffs-Appellants,
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`In re: APPLE PROCESSOR LITIGATION,
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`______________________________
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`ANTHONY BARTLING; et al.,
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` v.
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`APPLE INC.,
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` Defendant-Appellee.
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`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
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`Argued and Submitted August 15, 2023
`Anchorage, Alaska
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`Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.
`Partial Dissent by Judge PAEZ.
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`Plaintiffs brought this class action lawsuit against Apple, Inc. (“Apple”),
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`alleging that Apple knew several of its products (“iDevices”) were affected by two
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`security vulnerabilities, which could only be repaired by installing software
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`*
` This disposition is not appropriate for publication and is not precedent
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`except as provided by Ninth Circuit Rule 36-3.
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`updates that reduced the iDevices’ performance. Although Apple knew about
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`these issues by at least June 2017, Apple continued to tout the security and
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`performance of its iDevices and did not disclose the defects to the public until after
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`information about the security vulnerabilities was leaked to The New York Times in
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`January 2018. Plaintiffs brought claims under state consumer protection laws and
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`for common law fraud and also sought equitable relief. The district court granted
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`Apple’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
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`concluding that Plaintiffs failed to sufficiently allege violations under Rule 9(b)’s
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`heightened pleading requirements for fraud. See Kearns v. Ford Motor Co., 567
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`F.3d 1120, 1124 (9th Cir. 2009) (describing Rule 9(b) requirements). The court
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`also dismissed Plaintiffs’ equitable claims.
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`We have jurisdiction under 28 U.S.C. § 1291, and we review de novo
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`dismissals under Rules 9(b) and 12(b)(6). Moore v. Mars Petcare US, Inc., 966
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`F.3d 1007, 1016 (9th Cir. 2020). At the motion to dismiss stage, “[a]ll allegations
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`of material fact in the complaint are taken as true and construed in the light most
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`favorable to Plaintiffs.” Id. (citing Williams v. Gerber Prods. Co., 552 F.3d 934,
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`937 (9th Cir. 2008)). We apply state substantive law to Plaintiffs’ state law claims.
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`Id. (quoting Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013)).
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`To state a claim under the California Consumer Legal Remedies Act
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`2
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`(“CLRA”) or for fraud,1 plaintiffs must plead three elements: a knowing
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`misrepresentation, reliance, and damages. See Kearns, 567 F.3d at 1126; In re
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`Tobacco II Cases, 207 P.3d 20, 581–82 (Cal. 2009). The misrepresentation can be
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`an affirmative statement or an omission. Kearns, 567 F.3d at 1126. Because
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`Plaintiffs have failed to state a claim under either approach, we affirm.
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`1. Affirmative Misrepresentations. Plaintiffs allege that Apple made
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`affirmative misrepresentations about the security and performance of its iDevices.
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`We conclude that none of the alleged statements is actionable. First, the two
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`statements concerning security were made in May 2017. Despite passing
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`references to 1995 and 2012, Plaintiffs have not pled with particularity that Apple
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`knew about the defects before June 2017. See Kearns, 567 F.3d at 1124–25.
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`Because Plaintiffs must explain why the statement was “untrue or misleading when
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`made,” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 1994), the
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`security statements are not actionable. Second, although Plaintiffs identified
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`statements that Apple made about the iDevices’ performance in or after June 2017,
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`these statements are also not actionable. Some statements, such as those that claim
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`the iDevices’ chips are the “most powerful and smartest . . . ever,” are non-
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`1 Because Plaintiffs present the same arguments and factual bases for each state
`consumer protection statutory claim and for the fraud claim, the district court
`analyzed these claims together using California law. We follow the same
`approach.
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`3
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`actionable “puff[ery]” because “no reasonable consumer would take [them] as
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`anything more weighty than an advertising slogan.” See Consumer Advocs. v.
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`Echostar Satellite Corp., 8 Cal. Rptr. 3d 22, 29 & n.3 (Ct. App. 2003) (internal
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`quotation marks and citation omitted). Other statements are more measurable and
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`definitive, claiming that the new iDevices are certain percentages faster than prior
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`generations, but Plaintiffs have not specifically alleged that Apple’s comparative
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`statements were false. We thus affirm the district court’s conclusion that Plaintiffs
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`failed to plead with particularity any actionable affirmative misrepresentations.
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`2. Omissions. Plaintiffs next allege that Apple’s failure to disclose the
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`defects was actionable as an omission. Even assuming an omission occurred,
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`however, Plaintiffs failed to demonstrate reliance on the alleged omission. To do
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`so, they needed to “simply prov[e] ‘that, had the omitted information been
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`disclosed, [they] would have been aware of it and behaved differently.” Daniel v.
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`Ford Motor Co., 806 F.3d 1217, 1224 (9th Cir. 2015) (quoting Mirkin v.
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`Wasserman, 858 P.2d 568, 574 (Cal. 1993)). While Plaintiffs have alleged that
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`they would have behaved differently had Apple disclosed the defects, they have
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`not sufficiently alleged that they would have been aware of any disclosure.
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`Although Plaintiffs allege that Apple “disseminated widely” information from its
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`headquarters and that the defects were “widely reported” once The New York
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`Times learned about the security vulnerabilities, the complaint does not contain
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`4
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`allegations that Plaintiffs themselves were likely to encounter the news reports or
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`to read Apple’s press releases. See Daniel, 806 F.3d at 1226–27 (concluding
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`plaintiffs demonstrated probable awareness because they “presented evidence that
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`they interacted with and received information from” the sources through which
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`defendant would have disclosed a defect). The district court thus correctly
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`concluded that Plaintiffs failed to state an omission-based claim.
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`3. Equitable Claims. Plaintiffs also assert claims for restitution, injunctive
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`relief, and unjust enrichment under the CLRA and California’s Unfair Competition
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`Law (“UCL”). The district court dismissed these claims under Sonner v. Premier
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`Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020), which held that federal courts
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`must apply federal equitable principles to state-based equitable claims, such that a
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`plaintiff “must establish that she lacks an adequate remedy at law before securing
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`equitable restitution for past harm under the UCL and CLRA.” Id. at 844.
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`Plaintiffs attempt to cabin Sonner to its facts, but subsequent case law has made
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`clear that “Sonner’s holding applies to equitable UCL claims when there is a viable
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`CLRA damages claim, regardless of” the facts. Guzman v. Polaris Indus. Inc., 49
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`F.4th 1308, 1312 (9th Cir. 2022). Thus, Plaintiffs were obligated to allege that
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`they had no adequate legal remedy in order to state a claim for equitable relief, see
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`Sonner, 971 F.3d at 844, and they have “fail[ed] to explain” how the money they
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`seek through restitution is any different than the money they seek as damages, id.
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`5
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`The district court thus correctly dismissed Plaintiffs’ equitable claims.
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`AFFIRMED.
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`6
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`Bartling v. Apple, Inc., No. 22-16164
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`Paez, Circuit Judge, dissenting in part:
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`FILED
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`SEP 13 2023
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`Although I agree with most of the conclusions reached by the majority, I
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`would hold that Plaintiffs alleged an affirmative misrepresentation claim under the
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`California Consumer Legal Remedies Act (“CLRA”). In September 2017, after it
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`knew of the iDevices’ issues, Apple stated that its new iPhone would operate 70
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`percent faster than the prior model. Plaintiffs allege that testing conducted on an
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`iPhone 7 demonstrates that after the necessary software updates are installed, all
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`iDevices operate up to 40 percent slower. At the motion to dismiss stage, we must
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`accept Plaintiffs’ allegations as true. See Moore v. Mars Petcare US, Inc., 966 F.3d
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`1007, 1016 (9th Cir. 2020) (citing Williams v. Gerber Prods. Co., 552 F.3d 934,
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`937 (9th Cir. 2008)).
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`The district court and majority conclude that because all iDevices were
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`affected, Apple’s comparative claim is still technically true and therefore not
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`actionable. But the CLRA “prohibit[s] not only advertising which is false, but also
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`advertising which, although true, is either actually misleading or which has a
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`capacity, likelihood or tendency to deceive or confuse the public.” Williams, 552
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`F.3d at 938 (quoting Kasky v. Nike, Inc., 45 P.3d 243, 250 (Cal. 2002)); Moore, 966
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`F.3d at 1017. To determine whether advertising is likely to mislead the public, we
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`use a “reasonable consumer” standard. Williams, 552 F.3d at 38; Moore, 966 F.3d
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`at 1017. California courts have repeatedly “recognized that whether a business
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`practice is deceptive will usually be a question of fact not appropriate for decision”
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`at the motion to dismiss stage. Williams, 552 F.3d at 938 (collecting cases).
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`In my view, whether a reasonable consumer would be deceived by Apple’s
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`specific and measurable statements about its iDevices’ performance is a factual
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`issue that should be decided by the trier of fact, not by this Court at the 12(b)(6)
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`stage. I respectfully dissent in part.
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`2
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