The Nature of the Lawsuit

Plaintiff Adrienne Moore ("Moore" or "Plaintiff") hereby brings this action on behalf of herself and all other similarly situated persons within the United States who obtained wireless cellular service on an Apple iPhone or iPad device that was equipped with Apple's iMessage service, and subsequently replaced that device (on which they were obtaining their wireless cellular service) with a non-Apple device instead.

When Plaintiff and the putative class members subscribed to cellular service through these Apple iPhone or iPad devices, they had, as part of their cellular service contract and Apple device ownership, the ability to send and receive text messages. To accomplish this task, these Apple device users employed an Apple service and application that were part of Apple's software operating system, and that are known respectively as iMessage and Messages.

Unbeknownst to Plaintiff and the putative class members, however, once they switched from an Apple iPhone or iPad to a non-Apple device for their wireless service needs, Apple's iMessages and Message service and application still retained text messages that were directed at these persons from other Apple users, and failed to deliver these text messages to the putative class members as long as these putative class members continued using a non-Apple device.

In this manner, Apple tortiously interfered with the contract for cellular service between these putative class members and their cellular telephone carrier in that Apple's actions prevented the subscribers from receiving all of their text messages, as they were entitled to obtain through their cellular wireless service contracts. Further, Apple failed to properly disclose to Plaintiff and the putative class members, at the time that they owned their Apple iPhone or iPad devices (or anytime thereafter) that, should they switch away from an Apple device to a non-Apple device, Apple's iMessage and Messages service and application would act to prevent these persons from receiving all their text messages on the non-Apple device that these class members used to replace their Apple iPhone or iPad devices. Through this material omission, Apple violated the California Legal Remedies Act. The foregoing conduct also amounts to a violation of California's Unfair Competition Law.

The Plaintiff's Testimony

Plaintiff is, and at all times relevant to this Class Action Complaint was, a subscriber of Verizon Wireless service for her wireless voice and data needs. Up until approximately April 16, 2014, Plaintiff owned and used an iPhone 4 as her wireless device (whose wireless service was provided by Verizon Wireless). As part of her wireless service, Plaintiff routinely sent and received text messages, including text messages from other Apple iPhone users. Her iPhone operating system was loaded with Apple's iMessage and Messages service and application, which her iPhone used to send and receive text messages.

On or about April 2014, Plaintiff switched from her Apple iPhone to a non-Apple Android wireless telephone (a Samsung S5), but kept her same cellular telephone number. Shortly after the switch away from an iPhone, Plaintiff began noticing that she was not receiving text messages that she had been expecting to receive from texters who were using Apple iPhone or iPad devices.

Upon discovering this problem with receipt of text messages, Plaintiff initially contacted Verizon Wireless. She was told that all she needed to do was to "turn off" iMessage in her old iPhone. Plaintiff did so, but this did not resolve the problem because while she now receives text messages sent from some iPhones, she still fails to receive text messages that are sent to her from other iPhones.

Plaintiff contacted Verizon Wireless again. The personnel at Verizon Wireless informed Plaintiff that this has been an issue when people switch from an Apple iPhone or other Apple device to a non-Apple phone. Verizon Wireless attempted to do some more troubleshooting with Plaintiff, but this was to no avail, as her problem persisted. Verizon Wireless patched Plaintiff to Apple for assistance.

Apple personnel informed Plaintiff that even though she had turned iMessage off in her old iPhone she may still not be receiving all her text messages because some texters using Apple devices may not be using the latest Apple iOS version. Rather than Apple coming up with a solution to a problem created by Apple, Apple's representative instead suggested to Plaintiff that Plaintiff get her text message senders to update their Apple iOS to the latest version, or have them delete and then re-add Plaintiff as their contact, or have Plaintiff and these unsuccessful Apple texters start a new text conversation with Plaintiff.

Aside from the fact that Plaintiff should not be tasked with the mission of coming up with fixes to a flaw in Apple's own service and application, the suggestions proffered by Apple's personnel proved wholly unworkable and did not solve the issue.

First, precisely because the texts are not being delivered to Plaintiff, it is impossible for Plaintiff to identify ahead of time which persons are sending her undelivered text messages from Apple devices that are not running the latest Apple iOS (and, even if she could, many Apple users may be unwilling to update their iOS to the latest version). The other two "solutions" suggested by Apple—that she be deleted and then re-added as a contact, or that a new text conversation be started with her, were tried by Plaintiff and some of her unsuccessful Apple texters, but that did not solve the problem (these Apple "suggestions" also suffer from the same flaw that it is impossible for Plaintiff to discern ahead of time all people who are attempting to send her text messages precisely because these text messages are not being delivered to Plaintiff as a result of the flaw in iMessage and Messages).

The unfortunate and unacceptable state of affairs, therefore, is that Plaintiff, as well as the other putative class members, now have text messages that are routinely not delivered to them (and neither Plaintiff nor the putative class members are notified of the failed delivery attempt) solely because they deigned to use Apple's iMessage and Message service and application, but ultimately chose to replace their Apple devices with a non-Apple phone or device.

The Heart of the Matter: Texting Changes Made to iOS 5

On or about October 12, 2011, Apple released its OS 5 update to the software powering Apple wireless devices, such as iPhones and iPads. As part of that updated, Apple included its iMessage service, which contained Apple's Messages client application. As part of that and subsequent Apple software versions, Apple's software on Apple iPhone and iPad wireless devices would employ iMessage and Messages, instead of the traditional SMS network route, to send text messages between users of Apple wireless devices who had an enabled iMessage service on their device.

As a result of Apple's software upgrade, if a user's iPhone or iPad is running iOS 5 or greater, the Message messaging application will send text messages as an iMessage instead of the usual text message when the text message is being sent between users who have the Apple iMessage service on their devices. This means that if one is sending text messages with another iOS 5 user, there is no SMS charge associated with the messaging. It is merely treated as an additional data transfer.

The undisclosed drawback that forms the gravamen of this action concerns the manner in which Apple's iMessage and Messages act once an iPhone or iPad user switches their wireless telephone number to a non-Apple device, as Plaintiff recently did. Once that occurs, the former Apple device user, who now uses a non-Apple device, is unable to receive text messages sent to her by users of Apple devices that employ iMessage and Messages (i.e., all Apple wireless devices operating OS 5 or more recent software versions).

Due to an undisclosed feature in Apple's iMessage and Messages service and application, the Apple Message application does not recognize that the same telephone number of the former Apple device user (who, herself, was previously receiving text messages through Message) is no longer using an Apple device and hence is no longer using iMessage or Messages. Thus, when a text message is sent from an Apple device user to a person whose telephone number used to be associated with an Apple device but is now used on a non-Apple telephone, the message is not delivered to the non-Apple device user on her new non-Apple device. Worse yet, this person receives no notification whatsoever that a text message directed to her was not delivered.

The effect is readily apparent. Solely as a result of Apple's doing, Plaintiff, like other wireless carrier subscribers who replace their Apple devices with non-Apple wireless devices, are penalized and unable to obtain the full benefits of their wireless service contracts because Apple's iMessage and Messages service and application prevent these users from receiving the text messages that they are entitled to receive as part of their wireless service contracts with their wireless providers (Verizon Wireless, in the case of Plaintiff).

Apple knew but never disclosed that its iMessage service and Message application would prevent Apple device owners from receiving text messages sent to them from other Apple users once these Apple device owners replaced their devices with non-Apple wireless devices. To the contrary, Apple touted the superior attributes and enhanced benefits of the iMessages and Message service and application while omitting any mention of this serious consequence. Had Plaintiff and the class members been informed by Apple that iMessage would work in such a fashion so as to prevent them from receiving text messages, once they switched their Apple     devices to non-Apple devices, Plaintiff and the putative class members would not have downloaded the iMessage and Messages service and application, or would not have purchased an iPhone or other Apple device in the first instance.

The Experiences of the Public at Large and Apple's Indifference to this Outcry

The court document, under a segment titled "The Experiences of the Public at Large and Apple's Indifference to this Outcry," points to an April 14, 2014 Business Insider report titled "An Apple Employee Admits That iPhones often won't Deliver Texts if you Switch To Android." The report stated that "Now an Apple customer support employee has admitted to Lifehacker's Adam Pash that, in fact, "a lot" of users have this problem: If you switch from an iPhone to an Android, iMessage won't deliver texts from iPhone users to your new Android phone. There is no fix in sight, Pash says he was told."

The Counts against Apple in this Class Action Lawsuit

1. TORTIOUS INTERFERENCE WITH CONTRACT
2. VIOLATIONS OF CALIFORNIA'S CONSUMER LEGAL REMEDIES ACT
3. VIOLATIONS OF CALIFORNIA'S UNFAIR COMPETITION LAW, Calif. Bus. And Prof. Code, § 17200 et. seq.)

Beyond expecting Apple to pay damages exceeding $5 million dollars should they be found guilty in this Class Action, they added in their "Prayer for Relief" that they want "A mandatory injunction requiring Apple to fix its iMessage and Messages service and application, such that these products do not continue to prevent Plaintiff and the Class members from receiving all their text messages sent to them for other Apple devices, and requiring Apple to deliver to Plaintiff and the Class members all previous text messages that were not delivered to them on their non-Apple devices as a result of the Apple iMessage and/or Messages service and application."

The patent infringement case presented in today's report was filed in the California Northern District Court, San Jose Office. At present, no Judge has been assigned to the case.

Side Note #1: Here's Apple's Solution: iOS: Deactivating iMessage

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