Professional Documents
Culture Documents
Class Action, Juan Herrera v. Apple Inc
Class Action, Juan Herrera v. Apple Inc
APPLE, INC.,
Defendant.
Plaintiff Juan Herrera (“Plaintiff”), individually and on behalf of all others similarly
situated (“Class Members”), brings this Class Action Complaint against Apple, Inc. (hereinafter
“Apple” or the “Defendant”), and alleges, upon personal knowledge as to his own actions and his
counsels’ investigations, and upon information and belief as to all other matters, as follows:
I. INTRODUCTION
1. Plaintiff brings this class action against Defendant for its practice of harvesting data
from iPhones and Apple’s other consumer personal computing devices, such as iPads, Macs using
apps from the Apple “App Store,” etc., [hereinafter “User Information” or “UI”] which violate
state consumer deceptive practice and advertising laws; federal and state trespass laws; and
2. Apple records vast amounts of User Information without the consent or even the
knowledge of Plaintiff from all of his consumer computing devices that can utilize “apps” from
3. UI is, in fact collected, stored, and maintained by Defendant to, inter alia, sell
targeted advertisements to third parties that are specifically targeted at various demographics.
4. While the details of Defendant’s violations and illegal behavior are very technical
and complicated, it all boils down to a very simple idea: for all of Apple’s promises about how
private your iPhone is, the company vacuums up a lot of data about consumers without permission.
5. Plaintiff brings this action on behalf of all persons whose UI was harvested,
such UI.
state criminal computer trespass statutes, the Computer Fraud and Abuse Act of 1986 (CFAA), 18
USC § 1030 (a)(2)(B)],1 of New York General Business Laws §§ 349 and 350.
and willfully accessing, recording, harvesting, and storing user actions, activities, inputs, and other
II. PARTIES
8. Plaintiff is a resident of Nassau County and a citizen of the State of New York.
Plaintiff Herrera is a current iPhone customer and has bought several successive iPhones.
10. Plaintiff bought his iPhone at a price premium to phones by other makers.
11. Defendant Apple is a corporation organized under the laws of California, and its
American headquarters and principal place of business located at One Apple Park Way, Cupertino,
CA 95014.
1
Any government official using an Apple device is using a “protected computer” as defined in 18 USC §
1030(e)(2), and access violates federal statutes.
CLASS ACTION COMPLAINT 2
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 3 of 29
12. Defendant Apple does substantial business in New York and sells to New York
consumers.
13. The true names and capacities of persons or entities, whether individual, corporate,
associate, or otherwise, who may be responsible for some of the claims alleged herein are currently
unknown to Plaintiff. Plaintiff will seek leave of court to amend this complaint to reflect the true
names and capacities of such other responsible parties when their identities become known.
14. All of Plaintiff’s claims stated herein are asserted against Defendant and any of its
15. This Court has original jurisdiction over this action under the Class Action Fairness
Act (“CAFA”), 28 U.S.C. § 1332(d)(2). The amount in controversy in this action exceeds
$5,000,000, exclusive of interest and costs, and there are more than 100 members of the Class,
defined below, many of which are citizens of a different state than Defendant. Defendant is a
16. This Court has personal jurisdiction over Defendant because Defendant is found
within this District, maintains many retail stores in this District, avails itself to the stock markets
17. Venue is proper in this Court under 28 U.S.C. § 1391 because Defendant raises
capital in the financial markets in this judicial district, and Defendant regularly transacts business
in this District with consumers of New York state living in this district, and a substantial part of
Background
18. Apple describes itself as a company which “designs, manufactures and markets
smartphones, personal computers, tablets, wearables and accessories, and sells a variety of related
services.”
19. Apple’s reported revenue for 2022 was almost $400 billion.
20. Apple itself notes its advertising efforts in its Annual Report (hereinafter Form 10-
21. Apple further notes that net sales of services in which Apple includes its advertising
22. Apple states in its Form 10-K that ads and services are now more profitable than
the sales of Macs and iPads combined.3 It further states that for 2022 “[t]otal net sales increased
8% or $28.5 billion during 2022 compared to 2021, driven primarily by higher net sales of iPhone,
23. On its customer-facing website, Defendant has a posted Privacy Policy (the
“Privacy Policy”).4
24. The Privacy Policy states “Privacy is a fundamental human right. It’s also one of
2
Apple, Inc. (n.d.). Apple, Inc. Form 10-K For the Fiscal Year Ended September 24, 2022. Inline XBRL Viewer.
Retrieved January 12, 2023, from
https://www.sec.gov/ix?doc=%2FArchives%2Fedgar%2Fdata%2F320193%2F000032019322000108%2Faapl-
20220924.htm.
3
Id. Form 10-K p. 21 “Products and Services Performance” - Net sales of Services including ads were
$78,129,000,000; net sales of iPads were $29,292,000,000; net sales of Macs were $40,177,000,000.
4
Apple, Inc. (n.d.). Privacy. Apple. Retrieved January 12, 2023, from https://www.apple.com/privacy/
5
Apple, Inc. (n.d.). Privacy. Id.
CLASS ACTION COMPLAINT 4
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 5 of 29
25. Plaintiff and Class Members have been injured by the harvesting, collection,
26. It appears that Apple, like all other web advertisers, collects demographic
information to target specific advertising to consumers: ads that are specifically served to only an
audience that will be most receptive to the message are the most attractive to advertisers.
27. In effect: Apple is collecting the behavioral and demographic data from its entire
base of consumer computing hardware users to allow Apple to target advertising to users with
specific demographic data, inferred interests, and browsing context, bringing in more revenue.
28. By collecting all information from all devices, through automated means, Apple
can pair this data for every user transaction with unique device identifiers. and other Apple
ApplePay, and AppleCare) the number of individual transactions stored verges upon the
unimaginable.
30. Apple has amassed an undreamed-of amount of discrete and uniform User
Information.
31. The global big data and business analytics (BDA) market was valued at 168.8
billion U.S. dollars in 2018 and is forecast to grow to 215.7 billion U.S. dollars by 2021.6
32. Chinese venture capitalist Kai-Fu Lee currently manages over $2 billion in assets
as Chairman & CEO of Sinovation Ventures, a leading Chinese technology venture capital firm.
The article states that the “volume of data in China’s mobile payment, meal delivery and shared
bike sectors is dozens of times that of the US” and with that gargantuan store of hundreds of
6
Taylor, P. (2022, August 26). Big Data and Business Analytics Revenue 2022. Statista. Retrieved January 12,
2023, from https://www.statista.com/statistics/551501/worldwide-big-data-business-analytics-revenue/
CLASS ACTION COMPLAINT 5
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 6 of 29
millions of discrete transactions that are each identifiable to unique sources, any firm that can
access the data with the right algorithms can not only predict consumer actions but indeed
influence them. Mr. Lee famously stated, “If data were petroleum in the artificial intelligence era,
33. Shoshana Zuboff, professor emerita at Harvard Business School, calls this trend of
the unilateral claiming of private human experience as free raw material for
translation into behavioral data. These data are then computed and packaged as
prediction products and sold into behavioral futures markets — business
customers with a commercial interest in knowing what we will do now, soon,
and later. It was Google that first learned how to capture surplus behavioral data,
more than what they needed for services, and used it to compute prediction
products that they could sell to their business customers, in this case advertisers.8
35. Outside the Consumer Electronics Show, Apple posted a sign that covered an entire
side of the Springhill Suites Marriot hotel building, about 15 stories tall. It said, “What happens
7
Ge, G., & Ziye, W. (2018, September 18). China is to data what Saudi Arabia is to oil, Kaifu Lee tells Ai Forum.
一财全球 Yicai Global. Retrieved January 12, 2023, from https://www.yicaiglobal.com/news/china-is-to-data-what-
saudi-arabia-is-to-oil-kaifu-lee-tells-ai-forum.
8
Laidler, J. (2019, March 4). Harvard professor says surveillance capitalism is undermining democracy. Harvard
Gazette. Retrieved January 12, 2023, from https://news.harvard.edu/gazette/story/2019/03/harvard-professor-says-
surveillance-capitalism-is-undermining-democracy/.
9
https://twitter.com/chrisvelazco/status/1081330848262062080/photo/1.
CLASS ACTION COMPLAINT 6
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 7 of 29
36. The sign has the outline of an iPhone and the URL of the Apple privacy policy
website.10
37. Plaintiff and Class Members have taken reasonable steps to maintain the
confidentiality of their User Information and personal privacy, and Apple understands that value
10
Apple, Inc. (n.d.). Privacy. Id.
CLASS ACTION COMPLAINT 7
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 8 of 29
39. In selling its hardware and services to consumers, Apple has consistently assured
41. The IOS software on an iPhone have screens that purport to allow the user to do
what Apple claimed to be doing all along: not sharing User Information.
42. The screens titled “Analytics and Improvements” and most tellingly, “Tracking”
43. It has come to light that while Apple touts privacy, it values profits more.
44. The website Gizmodo broke a story that despite allowing the user to “switch on”
privacy protection, that protection was illusory. “According to a new report by independent
researchers, though, Apple collects extremely detailed information on you with its own apps even
when you turn off tracking, an apparent direct contradiction of Apple’s own description of how
45. The article continued “The iPhone Analytics setting makes an explicit promise.
Turn it off, and Apple says that it will ‘disable the sharing of Device Analytics altogether’”
(emphasis added).
46. Researchers in the article state that in looking at data collected by a number of
Apple iPhone apps—the App Store, Apple Music, Apple TV, Books, and Stocks: “They found the
analytics control and other privacy settings had no obvious effect on Apple’s data collection—the
tracking remained the same whether iPhone Analytics was switched on or off.”
47. But how much is this really hurting consumers? A recent decision by the French
48. In an article titled “Apple Fined $8.5 Million for Illegally Collecting iPhone
Owners’ Data for Ads,”12 the website Gizmodo reported “France’s data protection authority,
CNIL, fined Apple €8 million (about $8.5 million) Wednesday for illegally harvesting iPhone
49. The French regulator released a statement on January 4th, 2023,13 that it was
discovered that iPhones were capturing user data, even to the amount of time a user stayed on the
same screen.
11
Germain, T. (2022, November 8). Apple tracks you even with its own privacy protections on, study says. Gizmodo.
Retrieved January 13, 2023, from https://gizmodo.com/apple-iphone-analytics-tracking-even-when-off-app-store-
1849757558.
12
Germain, T. (2023, January 4). Apple fined $8.5m for illegally collecting iPhone owners' data for ADS. Gizmodo.
Retrieved January 12, 2023, from https://gizmodo.com/apple-iphone-france-ads-fine-illegal-data-1849950163.
13
Commission Nationale de l'Informatique et des Libertés. (2023, January 4). Identifiant Publicitaire: Sanction de 8
millions d'euros à l'encontre de Apple Distribution International. Fil d ariane. Retrieved January 12, 2023, from
https://www.cnil.fr/fr/identifiant-publicitaire-sanction-de-8-millions-deuros-lencontre-de-apple-distribution-
international.
CLASS ACTION COMPLAINT 9
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 10 of 29
50. Advertisers or Sellers pay for ads on a Social Media Platform (“SMP”) like Google
or Facebook per ad shown to a user (per “impression”). If that user has no interest in the wares of
the Seller, then that ad impression money was wasted in the eyes of the seller.
51. SMPs have learned that Sellers will pay more for impressions for users they have
reason to believe are likely to buy. Because SMPs have vast stores of UI, SMPs could sell
impressions that can be categorized by keywords of interests and demographics of users, so called
“targeted” ads. SMPs use an auction like system called the “Vickrey Clarke Groves procedure.”
Sellers bid on the actual user “clicks” of various demographics, and SMPs sell to the higher bidder.
52. Therefore, it is in the best interests of the bidders to bid highly for ads that are
placed strategically to reach people who are likely to buy the product they sell. In other words,
VCG bidding encourages targeted advertising. As Facebook collects data, it determines which ads
consumers are more likely to click on, thus increasing the value of those ads for advertisers. It then
The average cost per click is 7,56 DKK. This can specify any add for exactly this query and
54. While seemingly miniscule, the practice has netted fortunes. Facebook relies almost
entirely on it: “Our advertising revenue is dependent on targeting and measurement tools that
14
Selling Keywords, Targeted Advertising, and The Social Dilemma: Networks Course blog for INFO 2040/CS
2850/Econ 2040/SOC 2090. (2022, November 1). Retrieved January 13, 2023, from
https://blogs.cornell.edu/info2040/2022/11/01/selling-keywords-targeted-advertising-and-the-social-dilemma/.
15
Danish for “cooperative assessments.”
16
Leo-Hansen, A. (2020, June). How is the VCG mechanism profiting Facebook? Retrieved January 13, 2023, from
University of Copenhagen, Faculty of Social Sciences, Department of Economics
https://www.researchgate.net/publication/345818075_How_is_the_VCG_mechanism_profiting_Facebook.
CLASS ACTION COMPLAINT 10
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 11 of 29
incorporate data signals from user activity on websites and services that we do not control, and
changes to the regulatory environment, third-party mobile operating systems and browsers, and
our own products have impacted, and we expect will continue to impact, the availability of such
55. Meta, the parent company, reported advertising revenue of $69.66 billion for 2019,
up 27% year-over-year.18
V. CLASS ALLEGATIONS
57. Plaintiff brings this Nationwide class action on behalf of himself and on behalf of
all others similarly situated pursuant to Rule 23(b)(2), 23(b)(3), and 23(c)(4) of the Federal Rules
of Civil Procedure, and other applicable law, and a New York State Resident sub-class for the
58. The Nationwide Class that Plaintiff seeks to represent is defined as follows:
59. The New York State Resident Sub- Class that Plaintiff seeks to represent is defined
as follows:
All New York State residents whose User Information was actually
or potentially accessed, collected, or acquired by Defendant as part
of its software and hardware Analytics and Tracking (the “New
York State Resident Class”).
60. Excluded from the putative Classes are the following individuals and/or entities:
Defendant and Defendant’s parents, subsidiaries, affiliates, officers and directors, and any entity
17
SEC filings details. Meta - Financials - SEC Filings Details. (n.d.). Retrieved January 13, 2023, from
https://investor.fb.com/financials/sec-filings-details/default.aspx?FilingId=13872030.
18
Id.
19
Apple, Inc. (n.d.). Apple, Inc. Form 10-K For the Fiscal Year Ended September 24, 2022.
CLASS ACTION COMPLAINT 11
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 12 of 29
in which Defendant has a controlling interest; all individuals who make a timely election to be
excluded from this proceeding using the correct protocol for opting out; any and all federal, state
or local governments, including but not limited to their departments, agencies, divisions, bureaus,
boards, sections, groups, counsels and/or subdivisions; and all judges assigned to hear any aspect
of this litigation, as well as their immediate family members and staff members.
61. Plaintiff reserves the right to modify or amend the definition of the proposed class
62. This action is brought and may be maintained as a class action because there is a
well-defined community of interest among many persons who comprise a readily ascertainable
class. A well-defined community of interest exists to warrant class wide relief because Plaintiff
and Class Members were subjected to the same wrongful practices by Defendant, entitling them
63. Numerosity: Federal Rule of Civil Procedure 23(a)(1): The Nationwide Class
is so numerous that individual joinder of its members is impracticable. While the exact number of
Class Members is unknown to Plaintiff at this time, Plaintiff is informed and believes that there
are at least one million Class Members. Those individuals’ names and addresses are available from
Defendant’s records, and Class Members may be notified of the pendency of this action by
64. Commonality: Fed. R. Civ. P. 23(a)(2) and (b)(3). Consistent with Rule 23(a)(2)
and with 23(b)(3)’s predominance requirement, common questions of law and fact exist as to
members of the Nationwide Class and predominate over any questions which affect only individual
members of the Class. These common questions include, but are not limited to:
a. Whether and to what extent Defendant had a duty to protect privacy of Plaintiff and
Class Members;
b. Whether Defendant had a duty not to disclose the data collected from Plaintiff and
c. Whether Defendant had a duty not to use the collected User Information of Plaintiff
d. Whether Defendant had a duty not to use the collected User Information of Plaintiff
and Class Members for sale to third parties as part of its advertising purposes;
h. Whether Plaintiff and Class Members are entitled to actual, damages, and/or statutory
j. Whether Plaintiff and Class Members are entitled to injunctive relief to redress the
collection.
65. Typicality: Fed. R. Civ. P. 23(a)(3): Consistent with Rule 23(a)(3), Plaintiff is a
member of the Class he seeks to represent, and his claims and injuries are typical of the claims and
injuries of the other Class Members. Plaintiff’s UI was collected by Defendant and was in
possession of Defendant at the time of this complaint. Plaintiff’s damages and injuries are akin to
other Class Members and Plaintiff seeks relief consistent with the relief of the Class.
66. Adequacy: Fed. R. Civ. P. 23(a)(4): Consistent with Rule 23(a)(4), Plaintiff will
adequately and fairly protect the interests of other Class Members. Plaintiff has no interests
adverse to the interests of absent Class Members. Plaintiff is an adequate representative of the
Class because Plaintiff is a member of the Class and is committed to pursuing this matter against
Defendant to obtain relief for the Class. Plaintiff has no conflicts of interest with the Class.
Plaintiff’s Counsel are competent and experienced in litigating class actions, including extensive
experience in data breach and privacy litigation. Plaintiff intends to vigorously prosecute this case
67. Predominance & Superiority: Fed. R. Civ. P. 23(b)(3): Consistent with Rule
23(b)(3), a class action is superior to any other available means for the fair and efficient
adjudication of this controversy, and no unusual difficulties are likely to be encountered in the
management of this class action. Common issues in this litigation also predominate over individual
issues because those issues discussed in the above paragraph on commonality are more important
to the resolution of this litigation than any individual issues. The purpose of the class action
mechanism is to permit litigation against wrongdoers even when damages to individual plaintiffs
may not be sufficient to justify individual litigation. Here, the damages suffered by Plaintiff and
the Class are relatively small compared to the burden and expense required to individually litigate
their claims against Defendant, and thus, individual litigation to redress Defendant’s wrongful
conduct would be impracticable. Individual litigation by each Class Member would also strain the
court system. Individual litigation creates the potential for inconsistent or contradictory judgments
and increases the delay and expense to all parties and the court system. By contrast, the class action
device presents far fewer management difficulties and provides the benefits of a single
68. Injunctive and Declaratory Relief. Class certification is also appropriate under
Rule 23(b)(2) and (c). Defendant has acted or continues to act on grounds that apply generally to
the Class Members, so that final injunctive relief or corresponding declaratory relief is appropriate
respecting the Class as a whole. Injunctive relief is necessary to uniformly protect the Class
Members’ data. Plaintiff seeks prospective injunctive relief as a wholly separate remedy from any
monetary relief.
69. Likewise, particular issues under Rule 23(c)(4) are appropriate for certification
because such claims present only particular, common issues, the resolution of which would
advance the disposition of this matter and the parties’ interests therein. Such particular issues
a. Whether Defendant owed a legal duty to Plaintiff and Class Members to maintain
user privacy;
regarding privacy;
regarding privacy;
regarding privacy;
f. Whether Defendant used its software to harvest the UI of Plaintiff and Class
g. Whether Defendant used its hardware to harvest the UI of Plaintiff and Class
70. A class action is superior to other available means for fair and efficient adjudication
of the claims of the Class and would be beneficial for the parties and the court. Class action
treatment will allow a large number of similarly situated persons to prosecute their common claims
in a single forum, simultaneously, efficiently, and without the unnecessary duplication of effort
and expense that numerous individual actions would require. The amounts owed to the many
individual Class Members are likely to be relatively small, and the burden and expense of
individual litigation would make it difficult or impossible for individual members of the class to
seek and obtain relief. A class action will serve an important public interest by permitting such
71. Risk of Prosecuting Separate Actions: This case is appropriate for certification
because class action litigation prevents the potential for inconsistent or contradictory judgments
raised by individual litigation. Plaintiff is unaware of any difficulties that are likely to be
encountered in the management of this action that would preclude its maintenance as a class action.
COUNT I
Breach of Implied Contract
(On Behalf of Plaintiff and the Nationwide Class)
72. Plaintiff and the Nationwide Class re-allege and incorporate by reference herein all
73. Defendant solicited Plaintiff and the Nationwide Class to purchase iPhones, iPads,
and other consumer electronics with visual commercials and print ads.
74. Defendant told Plaintiff and the Nationwide Class that in purchasing Apple
75. As stated, supra, one example defining invasion of data privacy Apple gave was
76. As stated, supra, another example defining invasion of data privacy Apple gave
77. In so doing, Plaintiff and the Nationwide Class entered into implied contracts with
Apple by which Defendant Apple agreed to not to engage in invasion of user privacy, not to harvest
user date, and to safeguard users from 3rd parties accessing their UI.
78. A meeting of the minds occurred when Plaintiff and the Nationwide Class agreed
to, and did, purchase Defendant’s products, usually at a premium price, in exchange for, amongst
79. Plaintiff and the Nationwide Class fully performed their obligations under the
80. By its actions stated within, Defendant breached the implied contracts it made with
diminished the value of its products to Plaintiff and the Nationwide Class, who were ultimately
contract, Plaintiff and the Nationwide Class have suffered (and will continue to suffer) ongoing,
imminent, and impending data theft, resulting in monetary loss and economic harm; loss of the
confidentiality of the harvested confidential data; and other economic and non-economic harm.
83. As a result of Defendant’s breach of implied contract, Plaintiff and the Nationwide
Class are entitled to and demand actual, consequential, and nominal damages.
COUNT II
Invasion of Privacy
(On Behalf of Plaintiff and Class Members)
84. Plaintiff and the Nationwide Class re-allege and incorporate by reference herein
85. Plaintiff and the Nationwide Class had a legitimate expectation of privacy to their
UI and relied on and were entitled to the protection of this UI against the prying eyes of anyone.
86. Defendant owed a duty to its customers, including Plaintiff and Class Members, to
keep integrity of its consumer devices as advertised and not gather the UI thereon, and to allow
87. Defendant failed to protect device integrity, and instead it collected UI of Plaintiff
88. Defendant collected individual UI unauthorized and unknown to Plaintiff and Class
Members to access and examine the UI of Plaintiff and Class Members, for its financial gain.
89. The unauthorized taking, custody of, and/or use Apple of the UI of Plaintiff and the
Nationwide Class (especially in the face of the absolute promises of privacy as a human right
90. The intrusion was into a device, place or thing, which was private, was advertised
by Apple to be private, and is entitled to be private. Plaintiff and the Nationwide Class used their
devices as part of Plaintiff’s and Class Members’ service relationships with Defendant, but
privately with an intention that the UI would be kept confidential and would be protected from
collection. Plaintiff and the Nationwide Class were reasonable in their belief that such information
would be kept private and would not be taken or accessed without their authorization.
91. The actions of Defendant constitute an intentional interference with Plaintiff’s and
Class Members’ interest in solitude or seclusion, either as to their persons or as to their private
92. Defendant acted with a knowing state of mind when it accessed UI, because the
resulting reporting of UI that occurred could only have been an act with intent and with actual
knowledge of Apple.
93. Because Defendant acted with this knowing state of mind, it knew its actions would
94. As a proximate result of the above acts and omissions of Defendant, the UI of
Plaintiff and the Nationwide Class was available to Apple without authorization, causing Plaintiff
95. Unless and until enjoined, and restrained by order of this Court, Defendant’s
wrongful conduct will continue to cause great and irreparable injury to Plaintiff and the
Nationwide Class in that the UI maintained by Defendant can be viewed, distributed, and used by
Apple for years to come. Plaintiff and the Nationwide Class have no adequate remedy at law for
the injuries in that a judgment for monetary damages will not end the invasion of privacy for
COUNT III
Breach of Confidence
(On Behalf of Plaintiff and Class Members)
96. Plaintiff and the Nationwide Class re-allege and incorporate by reference herein all
97. At all times during Plaintiff’s and Class Members’ interactions with Defendant,
Defendant was fully aware of the confidential and sensitive nature of Plaintiff’s and Class
Members’ UI.
98. As alleged herein and above, Defendant’s relationship with Plaintiff and the
Nationwide Class was governed by terms and expectations that Plaintiff’s and Class Members’ UI
99. Plaintiff and the Nationwide Class used Defendant’s devices and Defendant’s
services with the explicit and implicit understandings that Defendant would protect and not permit
100. Defendant voluntarily received in confidence the UI of Plaintiff and the Nationwide
Class with the understanding UI would not be accessed or disseminated to the public or any parties.
101. Due to Defendant’s actions, the UI of Plaintiff and the Nationwide Class was taken
by Apple and/or misappropriated to unauthorized third parties; beyond Plaintiff’s and Class
102. As a direct and proximate cause of Defendant’s actions and/or omissions, Plaintiff
103. But for Defendant’s access of Plaintiff’s and Class Members’ UI in violation of the
parties’ understanding of confidence, their UI would not have been compromised by any party,
including Apple.
104. The injury and harm Plaintiff and the Nationwide Class suffered was the reasonably
foreseeable result of Defendant’s unauthorized harvesting of Plaintiff’s and Class Members’ UI.
105. Defendant knew or should have known its methods of securing Plaintiff’s and Class
106. As a direct and proximate result of Defendant’s breach of its confidence with
Plaintiff and Class Members, Plaintiff and the Nationwide Class have suffered and will suffer
injury, including but not limited to: (i) lost opportunity costs associated with effort expended and
the loss of productivity addressing and attempting to mitigate the actual and future consequences
of the breach of privacy of their Apple devices, including but not limited to efforts spent
researching how to prevent, detect, contest, and recover from user information theft and indeed the
scope of that theft; (ii) costs associated with placing hardware and software with products that
actually protect user privacy of UI; and (iii) the continued risk to their UI, which remain in
and the Nationwide Class have suffered and will continue to suffer other forms of injury and/or
harm, including, but not limited to, anxiety, emotional distress, loss of privacy, and other economic
Class are entitled to and demand actual, consequential, and nominal damages.
COUNT IV
VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW §349 (a)(h)
(On Behalf of Plaintiff and the New York State Resident subclass)
109. Plaintiff and the Nationwide Class re-allege and incorporate by reference herein all
110. Plaintiff brings this claim individually and on behalf of New York State Resident
class members.
111. Plaintiff and the New York State Resident class members are individuals who
reside in New York and whose User Information was illegally taken by Defendant as described,
supra.
112. Plaintiff and the New York State Resident class members are “persons” within the
113. GBL §349 (a) states: “Deceptive acts or practices in the conduct of any business,
trade or commerce or in the furnishing of any service in this state are hereby declared unlawful.”
114. Defendant engaged in deceptive acts and practices in the form of material
misrepresentations and omissions to consumers during the conduct of business with Plaintiff and
the New York State Resident class members violation of GBL § 349 (a).
115. As fully alleged within, Defendant engaged in unfair and deceptive acts and
practices in violation of GBL § 349 (a); specifically, by stating that its devices would maintain
user privacy, that on its computing devices you “control how your apps use your data,”20 that on
its iPhone computing device “Learn about App Tracking Transparency on iPhone. A simple new
116. Apple advertises to New York consumers on billboards, the sides of buildings, and
at the point of sale on its website, as well as mass media and the internet.
117. Apple states “Every day, people go about their lives unaware that their personal
119. Apple covered up its willful misrepresentations with, inter alia, options on its
iPhone to make users believe their privacy was ensured, statements on their website stating
20
Apple, Inc. (n.d.). Privacy. Id.
21
Apple, Inc. (n.d.). Privacy. Id.
22
Apple, Inc. (n.d.). Privacy. Id. Image from same, accessed January 16, 2023.
CLASS ACTION COMPLAINT 22
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 23 of 29
120. Apple’s knowing misrepresentations caused Plaintiff and New York State Resident
121. The damages described in this Count are separate and distinct from any losses as
the result of Defendant’s breach of implied contract or breach of warranty of merchantability and
fitness of purpose.
123. Had Plaintiff and New York State Resident class members known of Defendant’s
intention to collect and monetize their private information, Plaintiff and New York State Resident
124. Had Plaintiff and New York State Resident class members known of Defendant’s
intention to collect and monetize their private information, Plaintiff and New York State Resident
class members would not have purchased Defendant’s devices at the premium price to other
equivalent phones.
125. As a direct and proximate result of Defendant’s violations, Plaintiff and New York
State Resident Class members suffered injury as comports with GBL § 349 (h).
126. Plaintiff seeks restitution on behalf of New York State Resident class members for
127. Plaintiff seeks actual damages in the amount of the disgorgement of the price
premium paid to Defendant, on behalf of New York State Resident class members under GBL §
349 (h).
restitution on behalf of New York State Resident class members for statutory treble damages under
omissions to consumers concerning their privacy, Plaintiff New York State Resident class
130. Plaintiff and the New York State Resident class members seek injunctive relief on
behalf of New York Class members in the form of an order (1) compelling Defendant to cease and
desist in harvesting of user data and (2) compelling Defendant to provide detailed and specific
disclosure of what types of User Information have been collected, who had access to that
131. Plaintiff and the New York State Resident class members seek attorney’s fees and
any other lawful, statutory, or equitable damages to the fullest extent permitted under GBL § 349
(h).
COUNT V
VIOLATIONS OF NEW YORK GENERAL BUSINESS LAW §350
(On Behalf of Plaintiff and the New York State Resident subclass)
132. Plaintiff and the Nationwide Class re-allege and incorporate by reference herein all
133. Plaintiff brings this claim individually and on behalf of New York State Resident
class members.
134. Plaintiff and the New York State Resident class members are individuals who
reside in New York and whose User Information was illegally taken by Defendant as described,
supra.
135. Plaintiff and the New York State Resident class members are “persons” within the
136. GBL §350 states: “False advertising in the conduct of any business, trade or
commerce or in the furnishing of any service in this state is hereby declared unlawful.”
137. False statements and omissions of material facts are covered under this statute.
139. Apple advertises to New York consumers on billboards, the sides of buildings, and
at the point of sale on its website, as well as mass media and the internet.
140. As stated specifically within this Complaint, Apple has billboards stating, “What
141. As stated above: Apple’s website, the point of sale of much of its consumer
142. Apple’s CEO Tim Cook has specifically stated this on NPR radio:
144. Apple’s knowing misrepresentations caused Plaintiff and the New York State
145. The damages described in this Count are separate and distinct from any losses as
the result of Defendant’s breach of implied contract or breach of warrantee of merchantability and
fitness of purpose.
147. Had Plaintiff and New York State Resident class members known of Defendant’s
intention to collect and monetize their private information, Plaintiff and New York State Resident
148. Had Plaintiff and New York State Resident class members known of Defendant’s
intention to collect and monetize their private information, Plaintiff and New York State Resident
23
Germain, T. (2022, November 8). Apple tracks you even with its own privacy protections on, study says.
Gizmodo. Id. Supra.
CLASS ACTION COMPLAINT 26
Case 1:23-cv-00411-JMF Document 1 Filed 01/17/23 Page 27 of 29
class members would not have purchased Defendant’s devices at the premium price to other
equivalent phones.
149. As a direct and proximate result of Defendant’s violations, Plaintiff and New York
State Resident Class members suffered injury as comports with GBL § 350.
150. Plaintiff seeks restitution on behalf of New York State Resident class members for
151. Plaintiff seeks actual damages in the amount of the disgorgement of the price
premium paid to Defendant, on behalf of New York State Resident class members under GBL §
350.
restitution on behalf of New York State Resident class members for statutory treble damages under
GBL § 350.
omissions to consumers concerning their privacy, Plaintiff New York State Resident class
154. Plaintiff and the New York State Resident class members seek injunctive relief on
behalf of New York Class members in the form of an order (1) compelling Defendant to cease and
desist in harvesting of user data and (2) compelling Defendant to provide detailed and specific
disclosure of what types of User Information have been collected, who had access to that
155. Plaintiff and the New York State Resident class members seek attorney’s fees and
any other lawful, statutory, or equitable damages to the fullest extent permitted under GBL § 350.
A. For an Order certifying the New York State Class and appointing Plaintiff and their
B. For equitable relief enjoining Defendant from engaging in the wrongful conduct
C. For injunctive relief requested by Plaintiff, including but not limited to, injunctive
and other equitable relief as is necessary to protect the interests of Plaintiff and
described herein;
ii. requiring Defendant to delete, destroy, and purge the UI of Plaintiff and the
Class unless Defendant can provide to the Court reasonable justification for the
retention and use of such information when weighed against the privacy
iii. requiring Defendant to meaningfully educate Plaintiff and the Class about the
E. For an award of attorneys’ fees, costs, and litigation expenses, as allowed by law;
G. Such other and further relief as this Court may deem just and proper.