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NOT FOR PUBLICATION
`
`UNITED STATES COURT OF APPEALS
`
`FOR THE NINTH CIRCUIT
`
`
`FILED
`
`
`SEP 13 2023
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`No. 22-16164
`
`
`D.C. No. 5:18-cv-00147-EJD
`
`
`
`MEMORANDUM*
`
`
`
`
`
`
`
` Plaintiffs-Appellants,
`
`
`In re: APPLE PROCESSOR LITIGATION,
`
`______________________________
`
`
`ANTHONY BARTLING; et al.,
`
`
`
` v.
`
`
`APPLE INC.,
`
`
`
`
`
`
`
`
`
` Defendant-Appellee.
`
`
`
`Appeal from the United States District Court
`for the Northern District of California
`Edward J. Davila, District Judge, Presiding
`
`Argued and Submitted August 15, 2023
`Anchorage, Alaska
`
`Before: MURGUIA, Chief Judge, and PAEZ and NGUYEN, Circuit Judges.
`Partial Dissent by Judge PAEZ.
`
`
`Plaintiffs brought this class action lawsuit against Apple, Inc. (“Apple”),
`
`alleging that Apple knew several of its products (“iDevices”) were affected by two
`
`security vulnerabilities, which could only be repaired by installing software
`
`
`*
` This disposition is not appropriate for publication and is not precedent
`
`
`except as provided by Ninth Circuit Rule 36-3.
`
`
`
`
`
`
`
`

`

`updates that reduced the iDevices’ performance. Although Apple knew about
`
`these issues by at least June 2017, Apple continued to tout the security and
`
`performance of its iDevices and did not disclose the defects to the public until after
`
`information about the security vulnerabilities was leaked to The New York Times in
`
`January 2018. Plaintiffs brought claims under state consumer protection laws and
`
`for common law fraud and also sought equitable relief. The district court granted
`
`Apple’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6),
`
`concluding that Plaintiffs failed to sufficiently allege violations under Rule 9(b)’s
`
`heightened pleading requirements for fraud. See Kearns v. Ford Motor Co., 567
`
`F.3d 1120, 1124 (9th Cir. 2009) (describing Rule 9(b) requirements). The court
`
`also dismissed Plaintiffs’ equitable claims.
`
`We have jurisdiction under 28 U.S.C. § 1291, and we review de novo
`
`dismissals under Rules 9(b) and 12(b)(6). Moore v. Mars Petcare US, Inc., 966
`
`F.3d 1007, 1016 (9th Cir. 2020). At the motion to dismiss stage, “[a]ll allegations
`
`of material fact in the complaint are taken as true and construed in the light most
`
`favorable to Plaintiffs.” Id. (citing Williams v. Gerber Prods. Co., 552 F.3d 934,
`
`937 (9th Cir. 2008)). We apply state substantive law to Plaintiffs’ state law claims.
`
`Id. (quoting Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013)).
`
`To state a claim under the California Consumer Legal Remedies Act
`
`
`
`2
`
`
`
`

`

`(“CLRA”) or for fraud,1 plaintiffs must plead three elements: a knowing
`
`misrepresentation, reliance, and damages. See Kearns, 567 F.3d at 1126; In re
`
`Tobacco II Cases, 207 P.3d 20, 581–82 (Cal. 2009). The misrepresentation can be
`
`an affirmative statement or an omission. Kearns, 567 F.3d at 1126. Because
`
`Plaintiffs have failed to state a claim under either approach, we affirm.
`
`1. Affirmative Misrepresentations. Plaintiffs allege that Apple made
`
`affirmative misrepresentations about the security and performance of its iDevices.
`
`We conclude that none of the alleged statements is actionable. First, the two
`
`statements concerning security were made in May 2017. Despite passing
`
`references to 1995 and 2012, Plaintiffs have not pled with particularity that Apple
`
`knew about the defects before June 2017. See Kearns, 567 F.3d at 1124–25.
`
`Because Plaintiffs must explain why the statement was “untrue or misleading when
`
`made,” In re GlenFed, Inc. Sec. Litig., 42 F.3d 1541, 1549 (9th Cir. 1994), the
`
`security statements are not actionable. Second, although Plaintiffs identified
`
`statements that Apple made about the iDevices’ performance in or after June 2017,
`
`these statements are also not actionable. Some statements, such as those that claim
`
`the iDevices’ chips are the “most powerful and smartest . . . ever,” are non-
`
`
`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.
`
`
`
`3
`
`
`
`

`

`actionable “puff[ery]” because “no reasonable consumer would take [them] as
`
`anything more weighty than an advertising slogan.” See Consumer Advocs. v.
`
`Echostar Satellite Corp., 8 Cal. Rptr. 3d 22, 29 & n.3 (Ct. App. 2003) (internal
`
`quotation marks and citation omitted). Other statements are more measurable and
`
`definitive, claiming that the new iDevices are certain percentages faster than prior
`
`generations, but Plaintiffs have not specifically alleged that Apple’s comparative
`
`statements were false. We thus affirm the district court’s conclusion that Plaintiffs
`
`failed to plead with particularity any actionable affirmative misrepresentations.
`
`2. Omissions. Plaintiffs next allege that Apple’s failure to disclose the
`
`defects was actionable as an omission. Even assuming an omission occurred,
`
`however, Plaintiffs failed to demonstrate reliance on the alleged omission. To do
`
`so, they needed to “simply prov[e] ‘that, had the omitted information been
`
`disclosed, [they] would have been aware of it and behaved differently.” Daniel v.
`
`Ford Motor Co., 806 F.3d 1217, 1224 (9th Cir. 2015) (quoting Mirkin v.
`
`Wasserman, 858 P.2d 568, 574 (Cal. 1993)). While Plaintiffs have alleged that
`
`they would have behaved differently had Apple disclosed the defects, they have
`
`not sufficiently alleged that they would have been aware of any disclosure.
`
`Although Plaintiffs allege that Apple “disseminated widely” information from its
`
`headquarters and that the defects were “widely reported” once The New York
`
`Times learned about the security vulnerabilities, the complaint does not contain
`
`
`
`4
`
`
`
`

`

`allegations that Plaintiffs themselves were likely to encounter the news reports or
`
`to read Apple’s press releases. See Daniel, 806 F.3d at 1226–27 (concluding
`
`plaintiffs demonstrated probable awareness because they “presented evidence that
`
`they interacted with and received information from” the sources through which
`
`defendant would have disclosed a defect). The district court thus correctly
`
`concluded that Plaintiffs failed to state an omission-based claim.
`
`3. Equitable Claims. Plaintiffs also assert claims for restitution, injunctive
`
`relief, and unjust enrichment under the CLRA and California’s Unfair Competition
`
`Law (“UCL”). The district court dismissed these claims under Sonner v. Premier
`
`Nutrition Corp., 971 F.3d 834, 844 (9th Cir. 2020), which held that federal courts
`
`must apply federal equitable principles to state-based equitable claims, such that a
`
`plaintiff “must establish that she lacks an adequate remedy at law before securing
`
`equitable restitution for past harm under the UCL and CLRA.” Id. at 844.
`
`Plaintiffs attempt to cabin Sonner to its facts, but subsequent case law has made
`
`clear that “Sonner’s holding applies to equitable UCL claims when there is a viable
`
`CLRA damages claim, regardless of” the facts. Guzman v. Polaris Indus. Inc., 49
`
`F.4th 1308, 1312 (9th Cir. 2022). Thus, Plaintiffs were obligated to allege that
`
`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
`
`seek through restitution is any different than the money they seek as damages, id.
`
`
`
`5
`
`
`
`

`

`The district court thus correctly dismissed Plaintiffs’ equitable claims.
`
`AFFIRMED.
`
`
`
`6
`
`
`
`

`

`Bartling v. Apple, Inc., No. 22-16164
`
`Paez, Circuit Judge, dissenting in part:
`
`FILED
`
`
`SEP 13 2023
`
`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
`
`Although I agree with most of the conclusions reached by the majority, I
`
`would hold that Plaintiffs alleged an affirmative misrepresentation claim under the
`
`California Consumer Legal Remedies Act (“CLRA”). In September 2017, after it
`
`knew of the iDevices’ issues, Apple stated that its new iPhone would operate 70
`
`percent faster than the prior model. Plaintiffs allege that testing conducted on an
`
`iPhone 7 demonstrates that after the necessary software updates are installed, all
`
`iDevices operate up to 40 percent slower. At the motion to dismiss stage, we must
`
`accept Plaintiffs’ allegations as true. See Moore v. Mars Petcare US, Inc., 966 F.3d
`
`1007, 1016 (9th Cir. 2020) (citing Williams v. Gerber Prods. Co., 552 F.3d 934,
`
`937 (9th Cir. 2008)).
`
`The district court and majority conclude that because all iDevices were
`
`affected, Apple’s comparative claim is still technically true and therefore not
`
`actionable. But the CLRA “prohibit[s] not only advertising which is false, but also
`
`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
`
`F.3d at 1017. To determine whether advertising is likely to mislead the public, we
`
`use a “reasonable consumer” standard. Williams, 552 F.3d at 38; Moore, 966 F.3d
`
`

`

`at 1017. California courts have repeatedly “recognized that whether a business
`
`practice is deceptive will usually be a question of fact not appropriate for decision”
`
`at the motion to dismiss stage. Williams, 552 F.3d at 938 (collecting cases).
`
`In my view, whether a reasonable consumer would be deceived by Apple’s
`
`specific and measurable statements about its iDevices’ performance is a factual
`
`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.
`
`
`
`2
`
`

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