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A Second Class Action has been filed against Apple for Falsely Advertising iDevice Storage Capacities


In December we posted a report titled "Apple Faces New Class Action over False iDevice Storage Capacities." That case was brought on by two Floridians. Late on Tuesday, Steven Neocleous of Flushing New York and Shaefer Wiese of Minnesota Minneapolis individually and on behalf of all others similarly situated filed a similar Class Action against Apple. Patently Apple's report covers the "Nature of the Action," and in-part the "Factual Allegations" that were found in the Plaintiff's complaint filed with a California Court.


This Class Action Complaint Covers Four Areas of Law







Nature of the Action


By misrepresenting and omitting crucial material facts relating to the usable storage capacity on 8 and 16 Gigabyte ("GB") iPhones, iPads and iPods ("Device" or collectively "Devices"), reasonable consumers are misled with respect to the storage space actually available. In fact, as explained in greater detail below, the iOS 8 operating system uses an unexpectedly large percentage of the storage capacity on 8 GB and 16 GB iPhones, iPads and iPods, so that consumers have considerably less space available than Defendant advertises.


Through various advertising and marketing tactics, Defendant has consistently represented to consumers that the Devices contain 8 or 16 Gigabytes of storage space. Yet Defendant does not tell consumers that as much as 23.1% of the Devices' advertised storage capacity will be inaccessible to the consumer due to mandatory preinstalled iOS 8 software. As a result of consistent misrepresentations and omissions regarding the actual storage capacity of the Devices, reasonable consumers, such as Plaintiffs, do not expect that they are, in fact, purchasing a Device that contains significantly less storage capacity than that promised by Defendant.


When making statements to consumers at the time they initially purchased the Devices, Defendant knowingly omitted material facts about the Devices' useable storage capacity. These omissions provided a false pretense regarding the storage capacity of the Devices, upon which reasonable consumers relied when purchasing the Devices. Plaintiffs bring this lawsuit individually and on behalf of a class of similarly situated persons who have purchased one or more of the Devices. This class action seeks to halt Defendant's deceptive marketing of the Devices and seeks damages for Defendant's illegal conduct in violation of California's Unfair Competition Law § 17200; California's False Advertising Law § 17500 et seq; and California's Consumer Legal Remedies Act § 1750 et seq. The lawsuit further alleges that Defendant was unjustly enriched by its deceptive marketing at the expense of Plaintiff and the Class.


Factual Allegations


The Class Action Lawsuit presents a segment titled "Factual Allegations." The Factual Allegations in-part reads as follows: "Since 2001, Defendant has manufactured and marketed a line of "iPod" audio players. Since 2007, Defendant has manufactured and marketed a line of "iPhone" mobile telephones. And since April 3, 2010, Defendant has manufactured and marketed a line of 'iPad' tablet devices. As noted above, 8 GB and 16 GB versions of the iPhones, iPods and iPads are collectively referred to herein as the 'Devices.'


During the relevant time period, Defendant has made representations to consumers about the storage capacities of its 8 GB and 16GB iPhones, iPads and iPods.


Defendant currently markets and sells the iPhone 6 and 6+, introduced in or about September 2014. Predecessor models include the iPhone 5s and 5c introduced in or about September 2013, and the iPhone 4s introduced on or about October 10, 2011.


In its advertising, Defendant represents that iPhone 6 and 6+ are available with a storage capacity of 16 GB. Defendant also represented that earlier iPhone models were available with a storage capacity of 8 GB.


In August 2012, Plaintiff Steven Neocleous purchased his 16 Gigabyte iPhone 5 from PC Richards and Sons in College Point, Queens New York. Plaintiff Neocleous purchased his Device primarily for personal, family, or household use. Plaintiff Neocleous paid $100 for his Device, which was purchased with iOS 7.


Plaintiff Neocleous purchased his Device relying on Defendant's representation     that the Device had 16 GB of storage space. When Defendant offered Plaintiff an upgrade from iOS 7 to iOS 8, Defendant did not disclose the amount of storage capacity that would be consumed by the upgrade. As a result of Defendant's representation that the Device had 16 GB of storage space, and as a result of Defendant's failure to disclose that the iOS 8 upgrade would consume substantial storage space, Plaintiff agreed to upgrade to iOS 8 believing that the upgrade would not substantially reduce his available storage capacity.


In December 2014, Plaintiff Shaefer Wiese purchased his 16 Gigabyte iPhone 6 from a Target store in Minnetonka, Minnesota. Plaintiff Wiese purchased his Device primarily for personal, family, or household use. Plaintiff Wiese paid somewhere between $100 and $200 upfront for his Device and agreed to monthly payments of $20 until December of 2016, which was purchased with iOS 8.1 pre-installed.


Defendant employs false, deceptive and misleading practices in connection with marketing, selling, and distributing the Devices. For example, in its advertising, marketing, and promotional materials, including Defendant's Internet website, product packaging, and product displays, Defendant misrepresents the iPhone 6 as having 16 GB of storage capacity.


Defendant knows—but conceals and fails to disclose in its advertising, marketing and promotional materials—that the operating system and other pre-installed software consume a substantial portion of the represented storage capacity of each of the Devices. The represented capacity, is not, therefore, storage space that the consumer can actually use to store files after purchase. Thus, for a consumer who purchases a "16 GB" iPhone, iPad, or iPod with iOS 8 pre-installed, or who upgrades to iOS 8, as much as 23.1% of the represented storage capacity is inaccessible and unusable.


The following table depicts the discrepancy between represented storage capacity, and storage capacity actually available to purchasers, on certain iPhones and iPads - (with iOS 8 installed) recently examined by Plaintiffs' counsel:


2af chart

[Note: the data found the present case's chart above is the exact data that was presented in the first Class Action case that we reported on back in December 2014.]


Later in their Class Action filing the Plaintiff's Factual Allegations added that "An average consumer, when considering whether to purchase Defendant's Devices, would not reasonably expect that more than 20% of a Device's advertised storage capacity is consumed by iOS 8.


Defendant fails to disclose to consumers that pre-installed iOS 8 consumes up to 3.7 GB on a device represented to have 16 GB of storage capacity. For example, Defendant misrepresents that an iPhone 6+ has 16 GB of storage space while concealing and failing to disclose that, on models with iOS 8 pre-installed, more than 20% of that space is not space that the consumer can access and use to store his or her own files.


In addition to misleading consumers who purchase Devices with pre-installed iOS Defendant misleads consumers whose Devices run its predecessor operating systems."


Further into the Factual Allegations the Plaintiff notes that Apple, the "Defendant, exploits the discrepancy between represented and available capacity for its own gain by offering to sell, and by selling, cloud storage capacity to purchasers whose internal storage capacity is at or near exhaustion. In fact, when a Device's storage capacity approaches its limit, the Device offers the purchaser the opportunity to purchase 'iCloud' cloud storage. For this 16    service, Defendant charges prices ranging from $0.99 to $29.99 per month.


Defendant does not permit users of its Devices to access other vendors' cloud storage services, nor do any of the Devices (unlike certain competitors' smartphones, including most phones using the Android operating system) permit the user to insert SD cards or other supplemental storage units. Defendant also does not permit users to freely transfer files between the Devices and a PC using a "file manager" utility – an option available to most users of Android or Windows-based portable devices.


Plaintiffs hereby bring this class action seeking redress for Defendant's unfair business practices, false or deceptive or misleading advertising, and violations of New York and Minnesota Statutes.


The Class Action against Apple was filed in the California Northern District Court, San Jose Office in Santa Clara County. The Judge assigned to this case is Nathanael M. Cousins.


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