randy luskey (state bar no. 240915) orrick,...

NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,

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ORRICK, HERRINGTON &SUTCLIFFE LLP ATTORNEYS AT LAW

RANDY LUSKEY (STATE BAR NO. 240915)[email protected] ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, California 94105 Telephone: +1-415-773-5700 Facsimile: +1-415-773-5750

Attorney for Defendant APPLE, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

COLLEEN PALOMINO and IRENE MCDONNELL, individually and on behalf of all others similarly situated,

Plaintiff,

v.

APPLE, INC., and DOES 1-50, inclusive,

Defendant.

Case No.

NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332, 1441, 1446 AND 1453 BY DEFENDANT APPLE, INC.

Case 3:16-cv-03017 Document 1 Filed 06/03/16 of 9

- 1 - NOTICE OF REMOVAL UNDER 28 U.S.C. §§ 1332,

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TO THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF

CALIFORNIA AND TO PLAINTIFFS AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that Defendant Apple, Inc. (“Apple” or “Defendant”) removes

the above-captioned action from the Superior Court of the State of California in and for the

County of Santa Clara pursuant to 28 U.S.C. Sections 1332(d), 1441, 1446 and 1453 based on the

following grounds.

BACKGROUND

1. On April 29, 2016, Plaintiffs Colleen Palomino and Irene McDonnell

(“Plaintiffs”), on behalf of themselves and others similarly situated, filed a Complaint against

Apple in the Superior Court of the State of California, County of Santa Clara, entitled Palomino

et al., v. Apple, Inc. and Does 1-50, Case No. 16-CV-294540 (the “Complaint”). The allegations

of the Complaint are incorporated by reference in this Notice of Removal without necessarily

admitting any of them.

2. The Complaint purports to assert a class-wide cause of action for relief against

Apple stemming from Plaintiffs’ and putative class members creating an “Apple ID” and/or

accepting “terms and conditions” to access various Apple “stores,” including the “iTunes Store,

the Mac App Store, the App Store for Apple TV, the iBooks Store, Apple Music.” See Compl. ¶¶

2-4. Specifically, the Complaint alleges that the terms and conditions associated with using these

“stores” violate New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act

(“TCCWNA”), N.J.S.A. § 56:12-14 et seq. because they disclaim legal liability inconsistent with

New Jersey law. See, e.g., Compl. ¶¶ 6-7; 64-66.

3. On April 28, 2016, counsel for Plaintiffs, Carlson Lynch Sweet Kilpela &

Carpenter, LLP, filed a nearly identical class action complaint against Apple on behalf of a

different plaintiff in this District. See Silkowski v. Apple, Inc., Case No. 5:16-cv-02338 (N.D.

Cal. Apr. 28, 2016).



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TIMELINESS OF REMOVAL

4. Apple’s agent for service of process was served with the Summons and Complaint

on May 4, 2016. See Exhibit E (Service of Process Transmittal). The Complaint and Summons

are attached hereto as Exhibits A and C, respectively. This Notice of Removal is timely filed. 28

U.S.C. § 1446(b) (notice of removal shall be filed within thirty days of Apple’s receipt of the

Summons and Complaint).

5. No other pleadings have been filed or served to Apple’s knowledge related to this

case.

6. Apple is informed and believes, and on that basis alleges, that there have been no

other named defendants in this case and that no other defendant, whether named or not, has been

served with or otherwise received the Complaint in this action.

DIVERSITY JURISDICTION UNDER CAFA

7. This action is removable under the Class Action Fairness Act of 2005 (“CAFA”),

codified in 28 U.S.C. § 1332(d). The Court has original jurisdiction of this Complaint under

section 1332(d)(2), and the Complaint is removable pursuant to the provisions of 28 U.S.C.

sections 1441(a) and 1453 as it is a class action in which at least one class member is a citizen of

a state different from that of Apple, the class size exceeds 100 members, and the amount in

controversy exceeds $5,000,000, exclusive of interest and costs. Serrano v. 180 Connect, Inc.,

478 F.3d 1018, 1020-21 (9th Cir. 2007). Further, no defendant identified in the Complaint is a

state, officer of a state or a governmental agency. 28 U.S.C. § 1332(d)(5).

Complete Diversity of Citizenship Exists

8. Plaintiff’s Citizenship For Purposes of CAFA (28 U.S.C. § 1332(d)). For

diversity purposes, a person is a “citizen” of the state in which he or she is domiciled. Boon v.

Allstate Ins. Co., 229 F. Supp. 2d 1016, 1019 (C.D. Cal. 2002) (citing Kanter v. Warner-Lambert

Co., 265 F.3d 853, 857 (9th Cir. 2001)). For purposes of diversity jurisdiction, citizenship is

determined by the individual’s domicile at the time the lawsuit is filed. Boon, 229 F. Supp. 2d at

1019. Residence creates a presumption of domicile. Washington v. Hovensa LLC, 652 F.3d 340,

345 (3rd Cir. 2011); State Farm Mut. Auto Ins. Co. v. Dyer, 19 F.3d 514, 520 (10th Cir. 1994).



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Once the removing party produces evidence of domicile, the burden shifts to the other party to

come forward with contrary evidence, if any. Dyer, 19 F.3d at 519.

9. Plaintiffs allege that they are residents and citizens of New Jersey. Compl. ¶ 12.

Apple is therefore informed and believes that at the time Plaintiffs filed this civil action, Plaintiffs

were citizens of New Jersey. Moreover, Plaintiffs aver that the putative class members are “all

New Jersey residents who have created an Apple ID and/or agreed to the Terms and Conditions

within the applicable statute of limitations.” Id. ¶ 51.

10. Apple’s Citizenship For Purposes of CAFA (28 U.S.C. § 1332(d)). For

diversity purposes, a corporation “shall be deemed a citizen of any State by which it has been

incorporated and of the State where it has its principal place of business.” 28 U.S.C.

§ 1332(c)(1). The “principal place of business” is the state where the entity’s officers direct,

control and coordinate corporate activities, generally where it maintains its headquarters. See The

Hertz Corp v. Friend, 559 U.S. 77, 130 S. Ct. 1181, 1192 (2010) (adopting “nerve center”

approach to determine corporation's principal place of business).

11. For purposes of diversity, Apple is a citizen of California (its state of incorporation

and principal place of business). See Declaration of Michael Jaynes (“Jaynes Decl.”), ¶ 2; 28

U.S.C. § 1331(c)(1) (for diversity purposes, a corporation is deemed to be a citizen of (1) the state

under whose laws it is organized; and (2) the state of its “principal place of business.”); see also

David v. HSBC Bank Nevada, N.A., 557 F.3d 1026, 1028 (9th Cir. 2009).

12. At the time this action was commenced, Apple was, and still is, a corporation

organized and existing under and by virtue of the laws of the State of California. See Jaynes

Decl., ¶ 2. Apple’s principal place of business is also located in California. Id. Apple’s U.S.

headquarters are located in Cupertino, California. Id.

13. Doe Defendants. While Plaintiffs name John Does 1-50 as defendants, the

citizenship of fictitious defendants is disregarded for purposes of establishing removal jurisdiction

under 28 U.S.C. § 1332. See 28 U.S.C. § 1441(a); see also Bryant v. Ford Motor Co., 886 F.2d

1526 (9th Cir. 1989), cert. denied, 493 U.S. 1076 (1990).



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14. Based on the Complaint, therefore, at least one member of the putative class is a

citizen of a state different from that of Defendant Apple, as Plaintiffs are citizens of New Jersey

and Apple is a citizen of California.

The Putative Class Exceeds 100 Members

15. Plaintiffs seeks to represent “all New Jersey residents who have created an Apple

ID and/or agreed to the Terms and Conditions” during the putative class period. Compl. ¶ 51.

Plaintiffs’ proposed class far exceeds 100 persons—indeed, Plaintiffs allege that the putative class

includes as many as “thousands of individuals.” Compl. ¶ 53 (emphasis added).

Plaintiffs Seek More Than $5,000,000

16. The jurisdictional amount is satisfied. Apple denies Plaintiffs’ claims in their

entirety, but provides the following analysis of potential damages (without admitting liability)

based on the allegations in Plaintiffs’ Complaint in order to demonstrate that Plaintiffs’

Complaint puts a sufficient amount “in controversy” to warrant removal under 28 U.S.C. §

1332(d).

17. Removal is proper if, from the allegations of the Complaint, it is more likely than

not that the amount in controversy exceeds $5,000,000. See Lowdermilk v. United States Bank

Nat’l Assoc., 479 F.3d 994, 1000 (9th Cir. 2007). What matters is the amount put in controversy

by Plaintiffs’ complaint, not what amount the defendant will actually owe (if anything). “[T]he

amount in controversy is simply an estimate of the total amount in dispute, not a prospective

assessment of the defendant’s liability.” Lewis v. Verizon Comm., Inc., 627 F.3d 395, 400 (9th

Cir. 2010).

18. Plaintiffs’ counsel filed a duplicative and nearly identical lawsuit in this Court the

day before filing the present Complaint in state court, substituting named plaintiffs but otherwise

raising the same claims against the same defendant and seeking the same relief. Silkowski v.

Apple Inc., Case No. 5:16-cv-02338 (N.D. Cal. Apr. 28, 2016). In that action, counsel alleges

violations of the New Jersey Truth-in-Consumer Contract, Warranty and Notice Act, (¶ 1), asserts

that the amount in controversy exceeds $5,000,000, declares that the New Jersey plaintiffs are

sufficiently diverse from Apple, and that the putative class exceeds 100 members (¶ 9). A true



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and correct copy of the complaint filed in the identical action is attached hereto as Exhibit F.

19. Plaintiffs individually and on behalf of the putative class pray for a “declaratory

judgment,” “injunctive relief,” “actual damages,” “attorneys’ fees and court costs,” and “other

relief the Court deems just, equitable and appropriate.” Compl. ¶ 68(a)-(f). While Apple denies

the validity of Plaintiffs’ individual and class action claims, the class stands to recover in excess

of $5,000,000 based on the allegations set forth in the Complaint.

20. Plaintiffs assert that the putative class will be comprised of “all New Jersey

residents who have created an Apple ID and/or agreed to the Terms and Conditions within the

applicable statute of limitations.” Compl. ¶ 51. Plaintiffs seek damages of at least $100 per class

member, which would require a class of just 50,000 iTunes subscribers to satisfy the threshold.

More than 50,000 New Jersey residents have registered an iTunes account and agreed to the

iTunes Terms and Conditions within the past 6 years. Jaynes Decl., ¶ 3.

21. Plaintiffs individually and on behalf of the putative class seek an injunction that:

(a) “remov[es] from the Terms and Conditions the language declared in violation of N.J.S.A.

56:12-15 and 56:12-16.” Compl. ¶ 68(b). Where a lawsuit seeks injunctive relief, “it is well

established that the amount in controversy is measured by the value of the object of the

litigation.” Hunt v. Wash. State Apple Adver. Comm’n, 432 U.S. 333, 347 (1977). This includes

a defendant’s costs in complying with the injunction sought. Franceschi Jr. v. Harrah’s Entm’t,

No. 2:10–cv–00205–RLH–RJJ, 2011 WL 9305, at *2 (D. Nev. Jan. 3, 2011); Guglielmi ex rel.

Guglielmi v. Anheuser-Busch Cos., Inc., No. CV-04-594-ST, 2005 WL 300064 (D. Or. Feb. 8,

2005), report & recommendation adopted sub nom. Guglielmi v. Anheuser-Busch Cos., Inc., No.

CV 04-594ST, 2005 WL 524721 (D. Or. Mar. 4, 2005).

22. Plaintiffs also pray for attorneys’ fees and costs, which are considered in

ascertaining the amount at issue in this case. Compl. ¶ 68; see Guglielmino v. McKee Food Corp.,

506 F.3d 696, 700 (9th Cir. 2007); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir.

1998) (“[W]here an underlying statute authorizes an award of attorneys’ fees, either with

mandatory or discretionary language, such fees may be included in the amount in controversy.”).

23. Plaintiffs’ prayer for “whatever other relief the Court deems just, equitable and



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appropriate” may include money damages. See Fed. R. Civ. P. 54(c) (“[F]inal judgment should

grant the relief to which each party is entitled, even if the party has not demanded that relief in its

pleadings.”); cf. Davis v. John Hancock Viable Life Ins. Co., 295 Fed. Appx. 245, 246-47 (9th

Cir. 2008).

24. Here, the Complaint seeks to recover minimum statutory damages under N.J.S.A.

§ 56:12-17 ($100) and undisclosed “actual damages” for “each” Plaintiff and class member for

each statutory violation of 56:12-15 and 56:12-16. Compl. ¶¶ 67-68.

25. Apple expressly denies Plaintiffs’ allegations and specifically denies that any of its

terms and conditions violate the TCCWNA, but in determining whether the jurisdictional

minimum is met, the Court must consider the allegations of the Complaint and all recoverable

damages including statutory penalties and attorneys’ fees. Korn v. Polo Ralph Lauren Corp., 536

F. Supp. 2d 1199, 1205 (E.D. Cal. 2008) (“In measuring the amount in controversy, a court must

assume that the allegations of the complaint are true and that a jury will return a verdict for the

plaintiff on all claims made in the complaint. The ultimate inquiry is what amount is put ‘in

controversy’ by the plaintiff’s complaint, not what a defendant will actually owe”) (emphasis in

original); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1156 (9th Cir. 1998) (attorneys’ fees

properly included in determining the amount in controversy).

26. Based on Plaintiffs’ allegations, the minimum statutory damages for the alleged

violations of N.J.S.A. § 56:12-15 and § 56:12-16 would be $100 for each of the thousands of

class members, not including any “actual damages” that Plaintiffs fail to identify. Assuming

Plaintiffs can recover on their claims, they would likely assert entitlement to attorneys’ fees of

approximately 25% of the total recovery. In re Quintus Securities Litig., 148 F. Supp. 2d 967,

973 (N.D. Cal. 2001) (noting in the class action settlement context that the benchmark for setting

attorneys’ fees is 25 percent of the common fund); see also Frederico v. Home Depot, 507 F.3d

188, 199 (3d Cir. 2007) citing In re Rite Aid Corp. Securities Litig., 396 F.3d 294, 303 (3d Cir.

2005) (“Fees should be as much as thirty percent of the judgment”).

27. Thus, although Apple denies Plaintiffs’ factual allegations or that they or the

putative class members they purport to represent are entitled to the relief for which they have



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prayed, based on Plaintiffs’ allegations and prayer for relief, the amount in controversy is well over

the $5,000,000 threshold. Removal of this action is proper.

28. Because diversity of citizenship exists—the Plaintiffs are citizens of New Jersey

and Apple is a citizen of the State of California, the class size exceeds 100 members, and the

amount in controversy exceeds five million dollars—this Court has original jurisdiction of the

action pursuant to 28 U.S.C. section 1332(d)(2). This action is therefore a proper one for removal

to this Court. None of the bases for declining jurisdiction exist under 28 U.S.C. section

1332(d)(3) and (4) because the proposed class members are residents of New Jersey.

VENUE

29. Venue lies in the Northern District of this Court pursuant to 28 U.S.C.

sections 1441, 1446(a), and 84(a). This action originally was brought in the Superior Court of the

State of California, County of Santa Clara.

NOTICE OF REMOVAL

30. This Notice of Removal will be promptly served on Plaintiffs and filed with the

Clerk of the Superior Court of the State of California in and for the County of Santa Clara.

31. In compliance with 28 U.S.C. section 1446 (a), attached are copies of the state-

court papers received by Apple herein (the Complaint, attached as Exhibit A; Civil Case Cover

Sheet, attached as Exhibit B; Summons, attached as Exhibit C; Civil Lawsuit Notice, attached as

Exhibit D; and Service of Process Transmittal, attached as Exhibit E). Also attached as Exhibit F

is the complaint in Silkowski v. Apple, Inc., Case No. 5:16-cv-02338 (N.D. Cal. Apr. 28, 2016).

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WHEREFORE, Apple prays that this civil action be removed from the Superior Court of

the State of California, County of Santa Clara, to the United States District Court of the Northern

District of California.

Dated: June 3, 2016 RANDY LUSKEYOrrick, Herrington & Sutcliffe LLP

By: /s/ Randy Luskey RANDY LUSKEY

Attorneys for Defendant APPLE INC.


EXHIBIT A

Case 3:16-cv-03017 Document 1-1 Filed 06/03/16 Page 1 of 16

EXHIBIT B


EXHIBIT C


EXHIBIT D


EXHIBIT E


Service of ProcessTransmittal05/04/2016CT Log Number 529108726

TO: Ami GomezApple Inc.1 Infinite Loop, M/S 169-2NYJCupertino, CA 95014-2083

RE: Process Served in California

FOR: Apple Inc. (Domestic State: CA)

Page 1 of 3 / SM

Information displayed on this transmittal is for CTCorporation's record keeping purposes only and is provided tothe recipient for quick reference. This information does notconstitute a legal opinion as to the nature of action, theamount of damages, the answer date, or any informationcontained in the documents themselves. Recipient isresponsible for interpreting said documents and for takingappropriate action. Signatures on certified mail receiptsconfirm receipt of package only, not contents.

ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS: TITLE OF ACTION: COLLEEN PALOMINO and IRENE MCDONNELL, etc., Pltfs. vs. APPLE, INC., etc., et al.,

Dfts.

DOCUMENT(S) SERVED: Summons, Cover Sheet, Notice, Complaint, Information Sheet, Attachment(s)

COURT/AGENCY: Santa Clara County - Superior Court, CACase # 16CV294540

NATURE OF ACTION: Plaintiff seeking relief from the violations made by Defendant

ON WHOM PROCESS WAS SERVED: C T Corporation System, Los Angeles, CA

DATE AND HOUR OF SERVICE: By Process Server on 05/04/2016 at 14:50

JURISDICTION SERVED : California

APPEARANCE OR ANSWER DUE: Within 30 calendar days after this summons and legal papers are served

ATTORNEY(S) / SENDER(S): Todd D. CarpenterCA1LSON LYNCH SWEET KILPELA & CARPENTER, LLP402 West Broadway, 29th FloorSan Diego, CA 92101619-756-6994

ACTION ITEMS: SOP Papers with Transmittal, via Fed Ex Priority Overnight , 782982975809

Image SOP

Email Notification, Noreen Krall [email protected]

Email Notification, David Melaugh [email protected]

Email Notification, Colleen Brown [email protected]

Email Notification, Erica Tierney [email protected]

Email Notification, Diana Loop [email protected]

Email Notification, Sarita Venkat [email protected]

Email Notification, Tom Vigdal [email protected]

Email Notification, Cyndi Wheeler [email protected]






Page 2 of 3 / SM


Email Notification, Heather Moser [email protected]

Email Notification, Ami Gomez [email protected]

Email Notification, Tim O'Neil [email protected]

Email Notification, Charstie Wheelock [email protected]

Email Notification, Erik Floyd [email protected]

Email Notification, Beth Kellermann [email protected]

Email Notification, Andrew Song [email protected]

Email Notification, Ryan Moran [email protected]

Email Notification, David Weiskopf [email protected]

Email Notification, Jennifer Brown [email protected]

Email Notification, Susan Guarino [email protected]

Email Notification, Andrew Farthing [email protected]

Email Notification, Ash Upreti [email protected]

Email Notification, Jen Yokoyama [email protected]

Email Notification, Scott Murray [email protected]

Email Notification, Pami Vyas [email protected]

Email Notification, Kim Moore [email protected]

Email Notification, Lisa Olle [email protected]

Email Notification, Victoria Nakaahiki [email protected]

Email Notification, Maya Kumar [email protected]

Email Notification, Phil Rawlinson [email protected]

Email Notification, Jessica Hannah [email protected]

Email Notification, Kate Kaso-Howard [email protected]






Page 3 of 3 / SM


Email Notification, Marc Breverman [email protected]

SIGNED: C T Corporation SystemADDRESS: 818 West Seventh Street

Los Angeles, CA 90017TELEPHONE: 213-337-4615


EXHIBIT F


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COMPLAINT

CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP Todd D. Carpenter (CA 234464) Brittany C. Casola (CA 306561) 402 West Broadway, 29th Floor San Diego, California 92101 Telephone: 619.756.6994 Facsimile: 619.756.6991 [email protected] Attorney for Plaintiff Thomas Silkowski and Proposed Class Counsel

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION

THOMAS SILKOWSKI, on behalf of himself and all others similarly situated, Plaintiff, vs. APPLE INC., a CALIFORNIA corporation, and DOES 1- 50, inclusive, Defendant.

Case No. COMPLAINT CLASS ACTION

1. Violation of New Jersey’s Truth-in-Consumer Contract, Warranty and Notice Act, N.J.S.A. 56:12-14, et seq.

DEMAND FOR JURY TRIAL

Case 5:16-cv-02338 Document 1 Filed 04/28/16 Page 1 of 15Case 3:16-cv-03017 Document 1-6 Filed 06/03/16 Page 2 of 16

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COMPLAINT

1

Plaintiff THOMAS SILKOWSKI brings this action on behalf of himself and all others similarly

situated against APPLE INC., and states:

I. NATURE OF ACTION

1. Plaintiff brings this action individually and on behalf of all others similarly situated

against Apple Inc. (“Defendant” or “Apple”), alleging violations of the New Jersey Truth-in-Consumer

Contract, Warranty and Notice Act (“TCCWNA”), N.J.S.A. 56:12-14, et. seq.

2. The TCCWNA was enacted specifically to prevent deception in consumer contracts and to

incentivize businesses to draft contracts that are clear and understandable to all consumers, and that

clearly explain the legal rights of consumers and the legal responsibilities of businesses.

3. Defendant operates the iTunes Store, the Mac App Store, the App Store, the App Store for

Apple TV, the iBooks Store, and Apple Music (collectively the “Stores”).

4. In order to access the Stores, consumers must create an Apple ID and/or agree to the

iTunes terms and conditions (the “Terms and Conditions”). As a precondition to creating an Apple ID,

Defendant requires all consumers to agree to the Terms and Conditions.

5. The Terms and Conditions violate the TCCWNA because they contain provisions that

violate clearly established legal rights of Plaintiff and the proposed class, and ignore the legal

responsibilities of Defendant.

6. Specifically, the Terms and Conditions contain provisions that purport to: 1) disclaim

liability for claims brought for Defendant’s negligent, willful, malicious and wanton misconduct; 2) bar

claims for personal injury and punitive damages; 3) ban consumers from asserting claims against

Defendant for deceptive and fraudulent conduct; and 4) require Store users to indemnify and hold

harmless Defendant for any claims brought against Defendant for its negligent, willful, malicious and

wanton misconduct. All of the aforementioned provisions are in direct contravention of rights afforded

to Plaintiff and the proposed class under New Jersey law.

7. The inclusion of these violative provisions in the Terms and Conditions deceives

consumers into thinking that they are enforceable and accordingly, gives consumers the impression that

they are unable to enforce rights they otherwise have under New Jersey statutory and common law.

8. As a result of Defendant’s illegal conduct, Plaintiff, on behalf of himself and the Class,


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COMPLAINT

2

seeks statutory penalties, actual damages, attorneys’ fees, costs of suit, and any additional legal or

equitable relief the Court deems appropriate.

II. JURISDICTION, VENUE AND INTRADISTRICT ASSIGNMENT

9. This Court has original jurisdiction of this Action pursuant to the Class Action Fairness

Act, 28 U.S.C §1332(d). The matter in controversy, exclusive of interest and costs, exceeds the sum or

value of $5,000,000, and is a class action in which at least some members of the proposed class have a

different citizenship from Defendant. There are more than 100 putative class members.

10. The Northern District of California has personal jurisdiction over the Defendant named in

this action because Defendant is headquartered in this District and conducts substantial business in this

District.

11. Venue is proper in the Northern District of California under 28 U.S.C. § 1391(b) because

Defendant is headquartered in this District and transacts substantial business in this District.

12. Assignment is proper to the San Jose Division of the Northern District of California under

Civil L.R. 3-2(c) and (e) because Defendant is headquartered in Santa Clara County and transacts

substantial business in Santa Clara County.

III. PARTIES

13. Plaintiff, Thomas Silkowski, is and, at all times relevant hereto, was, a resident and citizen

of the State of New Jersey.

14. Defendant Apple Inc. is a publicly traded company headquartered at 1 Infinite Loop,

Cupertino, California 95014 and is a citizen of California.

IV. RELEVANT LAW AND STATUTES

A. The New Jersey Truth-in-Consumer Contract, Warranty and Notice Act

15. The TCCWNA was enacted over thirty years ago because “[f]ar too many consumer

contracts, warranties, notices and signs contain provisions which clearly violate the rights of consumers.

Even though these provisions are legally invalid or unenforceable, their very inclusion in a contract,

warranty, notice or sign deceives a consumer into thinking that they are enforceable and for this reason

the consumer often fails to enforce his rights.” Statement, Bill No. A1660, 1981 N.J. Laws, Chapter

454, Assembly No. 1660, page 2.


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COMPLAINT

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16. The primary goal of the TCCWNA is to prevent confusion and deception among

consumers as to both their legal rights, and the responsibilities of businesses operating in New Jersey.

The TCCWNA accomplishes this goal in three ways.

17. First, “No seller, lessor, creditor, lender or bailee shall in the course of his business offer

to any consumer or prospective consumer or enter into any written consumer contract or give or display

any written consumer warranty, notice or sign after the effective date of this act which includes any

provision that violates any clearly established legal right of a consumer or responsibility of a seller,

lessor, creditor, lender or bailee as established by State or Federal law at the time the offer is made or the

consumer contract is signed or the warranty, notice or sign is given or displayed.” N.J.S.A. 56:12-15.

18. Second, the TCCWNA prohibits any provision in a consumer contract or notice from

requiring the consumer to waive his or her rights under the TCCWNA. N.J.S.A. 56:12-16.

19. Third, the TCCWNA provides that a contract or notice cannot state in a general, non-

particularized fashion that some of its provisions may be void, inapplicable, or unenforceable in some

states, without specifying whether the provisions are void, inapplicable or unenforceable in New Jersey.

Id.

20. A “consumer” under the TCCWNA is “any individual who buys, leases, borrows, or bails

any money, property or service which is primarily for personal, family or household purposes.” N.J.S.A.

56:15.

21. A “consumer contract” is defined as a written agreement in which an individual, for

personal, family and household purposes, and for cash or credit:

a) Leases of licenses real or personal property;

b) Obtains credit;

c) Obtains insurance coverage;

d) Borrows money;

e) Purchases real or personal property;

f) Contracts for services; or

g) Enters into a service contract.

N.J.S.A. 56:12-1.


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22. Any person who violates the TCCWNA “shall be liable to the aggrieved consumer for a

civil penalty of not less than $100.00 or for actual damages, or both at the election of the consumer,

together with reasonable attorney’s fees and court costs.” N.J.S.A. 56:12-17.

B. Statutory and Common Law Rights of New Jersey Consumers

23. Under New Jersey common law, persons and entities have a duty to avoid unnecessary

risk of personal and economic injury to others. Persons harmed by negligent acts have a clearly

established right to recover damages under New Jersey common law.

24. Under New Jersey’s Punitive Damages Act (the “PDA”) persons are granted the right to

recover punitive damages when they prove “that the harm suffered was the result of the defendant’s acts

or omissions and such acts or omissions were actuated by actual malice or accompanied by a wanton and

willful disregard of persons who foreseeably might be harmed by those acts or omissions.” N.J.S.A.

2A:15-5.12.

25. Under New Jersey’s Consumer Fraud Act (the “CFA”), N.J.S.A. § 56:8–2 et seq., persons

are granted the right to recover for fraudulent and deceptive conduct.

26. The CFA targets unlawful sales and advertising practices designed to induce consumers to

purchase merchandise or real estate, and is designed to address misconduct in the marketing of

merchandise and real estate whereby the consumer could be victimized by being lured into a purchase

through fraudulent, deceptive, or other similar kinds of selling or advertising practices.

27. The CFA prohibits “[t]he act, use or employment by any person of any unconscionable

commercial practice, deception, fraud, false pretense, false promise, misrepresentation, or the knowing,

concealment, suppression, or omission of any material fact with intent that others rely upon such

concealment, suppression or omission, in connection with the sale or advertisement of any merchandise

or real estate, or with the subsequent performance of such person as aforesaid, whether or not any person

has in fact been misled, deceived or damaged thereby … [.]” N.J.S.A. § 56:8–2.

28. The CFA entitles any person who suffers any ascertainable loss of money or property as a

result of the use or employment by another person of any method, act, or practice declared unlawful

under the CFA to recover treble damages, attorneys’ fees, filing fees, reasonable costs of suit, and any

other appropriate legal or equitable relief. N.J.S.A. § 56:8-19.


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29. In line with these rights, the New Jersey legislature has set forth the following examples

of provisions that violate clearly established legal rights and responsibilities under the TCCWNA:

“Examples of [] provisions [in violation of the TCCWNA] are those that deceptively claim that a seller or

lessor is not responsible for any damages caused to a consumer, even when such damages are the result

of the seller’s or lessor’s negligence. These provisions provide that the consumer assumes all risks and

responsibilities, and even agrees to defend, indemnify and hold harmless the seller from all liability.”

Statement, Bill No. A1660, 1981 N.J. Laws, Chapter 454, Assembly No. 1660, page 2.

V. FACTUAL BACKGROUND

A. The Terms and Conditions Were Presented to Plaintiff and the Class

30. As described above, Apple operates the iTunes Store, the Mac App Store, the App Store,

the App Store for Apple TV, the iBooks Store, and Apple Music. The iTunes Store allows consumers to

access, purchase or rent digital content for cash or credit. The Mac App Store, the App Store, the App

Store for Apple TV and the iBooks Store allow consumers to license software products and digital

content for cash or credit. Apple Music allows consumers to access digital music for cash or credit.

31. In order to access any of the Stores, consumers must create an Apple ID and/or agree to

the Terms and Conditions. Before any consumer can create his or her Apple ID, he or she is presented

with, and must agree to, the Terms and Conditions.

32. Plaintiff, an iTunes customer, was presented and agreed to the Terms and Conditions

when he created his Apple ID and when he accessed the iTunes Store. Plaintiff has purchased hundreds

of songs from the iTunes Store as well as several movies and other services.

33. The class members also were presented and agreed to the Terms and Conditions when

they created their Apple IDs and when they accessed the Stores.

B. The Terms and Conditions Violate the TCCWNA

i. The Terms and Conditions violate N.J.S.A. 56:12-15

34. The Terms and Conditions presented to Plaintiff and the Class members contain

provisions that violate clearly established legal rights and responsibilities.

35. The Terms and Conditions, in reference to the iTunes Store, state, “IN NO CASE SHALL

APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS,


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OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE,

SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE

ITUNES SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF

THE ITUNES SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS

IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF

THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR OTHERWISE

MADE AVAILABLE VIA THE ITUNES SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY.

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE

LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH

STATES OR JURISDICTIONS, APPLE’S LIABILITY SHALL BE LIMITED TO THE EXTENT

PERMITTED BY LAW.”

36. The Terms and Conditions, in reference to the Mac App Store, the App Store, the App

Store for Apple TV and the iBooks Store, state, “IN NO CASE SHALL APPLE, ITS DIRECTORS,

OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS, OR

LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL,

OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF ANY OF THE APP AND

BOOK SERVICES OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF

THE APP AND BOOK SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR

OMISSIONS IN ANY CONTENT, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A

RESULT OF THE USE OF ANY CONTENT (OR PRODUCT) POSTED, TRANSMITTED, OR

OTHERWISE MADE AVAILABLE VIA THE APP AND BOOK SERVICES, EVEN IF ADVISED OF

THEIR POSSIBILITY. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE

EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL

DAMAGES, IN SUCH STATES OR JURISDICTIONS, APPLE'S LIABILITY SHALL BE LIMITED

TO THE EXTENT PERMITTED BY LAW.”

37. The Terms and Conditions, in reference to the Apple Music, state, “IN NO CASE SHALL

APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS,

OR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE,


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SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF THE APPLE

MUSIC SERVICE OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF

THE APPLE MUSIC SERVICE, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR

OMISSIONS IN ANY CONTENT OR APPLE MUSIC PRODUCTS, OR ANY LOSS OR DAMAGE

OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT OR APPLE MUSIC

PRODUCTS POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE APPLE

MUSIC SERVICE, EVEN IF ADVISED OF THEIR POSSIBILITY. BECAUSE SOME STATES OR

JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR

CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS,

APPLE'S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW.”

38. Each of these provisions violate clearly established legal rights of Plaintiff and the Class,

and misstate the clearly established legal responsibilities of Defendant, under New Jersey law, including

New Jersey common law, the CFA and the PDA.

39. These provisions violate the clearly established legal rights of Plaintiff and the Class to

recover damages for Defendant’s negligent conduct and for Defendant’s violations of the CFA. They

also violate Plaintiff’s and the Class’s clearly established legal right to seek punitive damages under the

PDA for Defendant’s malicious, wanton or willful misconduct. Similarly, these provisions violate

clearly established legal responsibilities of Defendant to refrain from causing unreasonable risk and harm

to Plaintiff and the Class, to refrain from causing Plaintiff and the Class to purchase and/or license

content or products from the Stores through deception and fraud, and to refrain from acting willfully and

maliciously, or with wanton disregard and thereby harming Plaintiff and the Class. For all of these

reasons, the Terms and Conditions violate the TCCWNA.

ii. The Terms and Conditions violate N.J.S.A. 56:12-16

40. The Terms and Conditions presented to Plaintiff and the Class members contain

provisions that state in a general non-particularized fashion that they are void, inapplicable or

unenforceable in some jurisdictions, without stating whether they are void, inapplicable or unenforceable

in New Jersey.

41. The Terms and Conditions, in reference to licensed applications, state, “TO THE


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EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR

PERSONAL INJURY OR ANY INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL

DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF

PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, OR ANY OTHER COMMERCIAL

DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO

USE THE LICENSED APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF

LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN

ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT

ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR

CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event

shall Licensor’s total liability to you for all damages (other than as may be required by applicable law in

cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations

will apply even if the above stated remedy fails of its essential purpose.”

42. This provision violates clearly established legal rights of Plaintiff and the Class, and legal

responsibilities of Defendant under New Jersey law.

43. This provision violates Plaintiff’s and the Class’s clearly established legal right to recover

from Defendant or a third-party for tortious conduct that causes personal injury. Likewise, this provision

violates Defendant’s duty to refrain from causing personal injury through its own negligent, reckless,

willful, malicious or wanton misconduct.

44. Although the provision states that “SOME JURISDICTIONS DO NOT ALLOW THE

LIMITATION OF LIABILITY FOR PERSONAL INJURY…SO THIS LIMITATION MAY NOT

APPLY TO YOU,” it fails to state whether the limitation is inapplicable or void in New Jersey.

Accordingly, the Terms and Conditions violate the TCCWNA.

45. The Terms and Conditions, in reference to the iTunes Store, state, “BY USING THE

ITUNES SERVICE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY

AND HOLD APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS,

CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING

OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE ITUNES SERVICE, OR


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ANY ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A SUSPECTED

VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A

VIOLATION OF THIS AGREEMENT HAS OCCURRED.”

46. The Terms and Conditions, in reference to the MAC App Store, the App Store, the App

Store for Apple TV and the iBooks Store, state, “BY USING THE APP AND BOOK SERVICES, YOU

AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD APPLE, ITS

DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PRINCIPALS,

AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS ARISING OUT OF YOUR

BREACH OF THIS AGREEMENT, YOUR USE OF THE APP AND BOOK SERVICES, OR ANY

ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION

OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION

OF THIS AGREEMENT HAS OCCURRED.”

47. The Terms and Conditions, in reference to the Apple Music, state, “BY USING THE

APPLE MUSIC SERVICE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO

INDEMNIFY AND HOLD APPLE, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES,

AGENTS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS

ARISING OUT OF YOUR BREACH OF THIS AGREEMENT, YOUR USE OF THE APPLE MUSIC

SERVICE, OR ANY ACTION TAKEN BY APPLE AS PART OF ITS INVESTIGATION OF A

SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR

DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED.”

48. These provisions violate clearly established legal rights of Plaintiff and the Class, and

legal responsibilities of Defendant under New Jersey Law.

49. These provisions violate clearly established rights of Plaintiff and the Class members by

forcing Plaintiff and the Class to hold Defendant harmless for any claims caused by Defendant’s

negligence, willful or reckless misconduct. In the same way, these provisions violate clearly establish

legal responsibilities of Defendant by allowing Defendant to shirk its duty of reasonable care and forcing

Plaintiff and the Class to indemnify Defendant for violations of Defendant’s duties under the law.

50. The provisions at issue violate the TCCWNA because they fail to state which of their


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parts are inapplicable or void in New Jersey. Although the Terms and Conditions are a standard form

contract, which based on information and belief, are presented to consumers in all fifty states in the same

exact form, the provisions at issue state that they are applicable “TO THE EXTENT PERMITTED BY

LAW.” As the Terms and Conditions are presented, and meant to apply, in multiple jurisdictions, if not

all fifty states, the language “TO THE EXTENT PERMITTED BY LAW,” does not bound and limit the

Terms and Conditions to comport with New Jersey law. Instead, this language is used to alert the reader

in a general, non-particularized fashion that the provisions are inapplicable, void and unenforceable in

some jurisdictions. Because these provisions fail to state whether they are inapplicable, void or

unenforceable in New Jersey, the Terms and Conditions violate the TCCWNA.

VI. CLASS ALLEGATIONS

51. Plaintiff brings this class action on behalf of himself and all others similarly situated

pursuant to Rules 23(a), 23(b)(2) and 23(b)(3) of the Federal Rules of Civil Procedure, on behalf of all

New Jersey residents who created an Apple ID within the applicable statute of limitations, and/or who,

after having created an Apple ID, were asked by Defendant to agree to the Terms and Conditions at any

time within the applicable statute of limitations.

52. Excluded from the Class are Defendant and its officers, directors and employees, the

Court, the Court’s immediate family and all Court staff, and Plaintiff’s attorneys and their immediate

family members.

53. Numerosity: The class described above is so numerous that joinder of all individual

members in one action would be impracticable. On information of belief, hundreds, if not thousands of

individuals have created an Apple ID and/or agreed to the Terms and Conditions. The disposition of the

individual claims of the respective class members through this class action will benefit both the parties

and this Court, and will facilitate judicial economy.

54. Ascertainability: The class is ascertainable because, on information and belief, Defendant

keeps and collects the information of each class member in a detailed electronic database, and records

when class members create an Apple ID and/or agree to the Terms and Conditions.

55. Typicality: Plaintiff’s claims are typical of the claims of the members of the class. The

claims of the Plaintiff and members of the class are based on the same legal theories and arise from the


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same unlawful conduct. The claims of Plaintiff and the Class arise from the same provisions which

uniformly are displayed in the Terms and Conditions. As such, the claims of Plaintiff and the Class rise

and fall together and are typical of one another.

56. Common Questions of Fact and Law Predominate: There are numerous question of law

or fact common to all class members. For example, whether the provisions at issue violate clearly

established law is a question common to all class members, and this question is susceptible to a common

answer. Similarly, whether the Terms and Conditions is a consumer contract is a question common to all

class members, and this question is susceptible to a common answer. These questions and others like

them predominate over individual issues. The same evidence needed to prove Plaintiff’s individual

claims will be used to prove the claims of all class members.

57. Adequacy of Representation: Plaintiff is an adequate representative of the class because

his interests do not conflict with the interests of the members of the class. Plaintiff will fairly,

adequately, and vigorously represent and protect the interests of the members of the class and has no

interests antagonistic to the members of the class. Plaintiff has retained counsel who are competent and

experienced in the prosecution of complex consumer class action litigation.

58. Superiority: The injury sustained by each Class member, while meaningful on an

individual basis, is not of such magnitude that it is economically feasible to prosecute individual actions

against Defendant. Even if it were economically feasible, requiring myriad injured plaintiffs to file

individual suits would impose a crushing burden on the court system and almost certainly lead to

inconsistent judgments. By contrast, class treatment will present far fewer management difficulties and

provide the benefits of a single adjudication, economies of scale, and comprehensive supervision by a

single court.

59. Class certification also is appropriate pursuant to Fed. R. Civ. P. 23(b)(2) because

Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate

both declaratory and injunctive relief with respect to Plaintiff and the Class as a whole.


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VII. CAUSES OF ACTION

CAUSE OF ACTION Violation of Truth-in-Consumer Contract, Warranty and Notice Act

N.J.S.A. 56:12-14, et seq.

60. The allegations contained in the previous paragraphs are incorporated by reference.

61. Defendant is a “seller” under the TCCWNA. N.J.S.A. 56:12-15.

62. Plaintiff is a “consumer” under the TCCWNA. Id.

63. The Terms and Conditions are a “consumer contract” under the TCCWNA because they

are a written agreement which governs the purchase and/or license of real or personal property and

services for cash or credit, and the property and services obtained are for personal, family, or household

purposes. N.J.S.A. 56:12-1.

64. The Terms and Conditions violate the TCCWNA because they include provisions that

violate clearly established legal rights and responsibilities. N.J.S.A. 56:12-15.

65. The Terms and Conditions contain provisions, as detailed above, that purport to disclaim

liability for harm caused 1) by Defendant’s negligence, 2) by Defendant’s acts that violate the CFA, and

3) by Defendant’s malicious, willful or wanton misconduct. The Terms and Conditions also contain

provisions that preclude claims for punitive damages. Id.

66. Further, the Terms and Conditions contain provisions, as detailed above, that state in a

general non-particularized fashion that some provisions are inapplicable or void in some jurisdictions

without stating which provisions are inapplicable or void in New Jersey. N.J.S.A. 56:12-16.

67. Pursuant to N.J.S.A. 56:12-17, Plaintiff and the Class are entitled to a civil penalty of not

less than $100.00, or for actual damages, or both, together with reasonable attorney’s fees and court

costs, and any additional relief the court deems appropriate.

VIII. PRAYER FOR RELIEF

68. Wherefore, Plaintiff, on behalf of himself and on behalf of the other members of the

Class, requests that this Court award relief against Defendant as follows:

a. A declaratory judgment that the Terms and Conditions are in violation of N.J.S.A.

56:12-15 and 56:12-16;

b. Injunctive relief requiring the removal from the Terms and Conditions the


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language declared in violation of N.J.S.A. 56:12-15 and 56:12-16;

c. An Order certifying the class proposed by Plaintiff, and naming Plaintiff as class

representative and appointing his counsel as class counsel;

d. Payment of at least $100, actual damages, or both, to Plaintiff and each class

member;

e. Payment of reasonable attorneys’ fees and court costs; and

f. The provision of whatever other relief the Court deems just, equitable and

appropriate.

VIII. DEMAND FOR JURY TRIAL

69. Plaintiff hereby demands a jury trial for all of the claims so triable.


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Dated: April 28, 2016 CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP /s/ Todd D. Carpenter Todd D. Carpenter (CA 234464) Brittany C. Casola (CA 306561) 402 West Broadway, 29th Floor San Diego, California 92101 Telephone: (619) 347-3517 Facsimile: (619) 756-6990 [email protected] Joseph J. DePalma LITE DEPALMA GREENBERG LLC 570 Broad Street, Suite 1201 Newark, NJ 07102 Telephone: (973) 623-3000 Facsimile: (973) 623-0858 [email protected] Katrina Carroll Kyle A. Shamberg LITE DEPALMA GREENBERG LLC 211 W. Wacker Drive, Suite 500 Chicago, IL 60606 Telephone: (312) 750-1265 Facsimile: (312) 212-5919 [email protected] R. Bruce Carlson Gary F. Lynch Kevin Abramowicz CARLSON LYNCH SWEET KILPELA & CARPENTER, LLP 1133 Penn Avenue, 5th Floor Pittsburgh, Pennsylvania 15222 Telephone: (412) 322-9243 Facsimile: (412) 231-0246 [email protected] [email protected] Attorneys for Plaintiff


randy luskey (state bar no. 240915) orrick,...

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