Opposition Arguments to Dismiss iCloud+ Fraud Claims ‘Lack Merit,’ Says Apple

The arguments in plaintiff Lisa Bodenburg’s Dec. 8 opposition to Apple’s Nov. 24 motion to dismiss her first amended complaint alleging that Apple delivers iCloud+ subscribers 5 GB less monthly cloud-storage capacity than they pay for (see 2312110029) “lack merit” and confirm that the first amended complaint should be dismissed with prejudice, said Apple’s reply Friday (docket 3:23-cv-04409) in U.S. District Court for Northern California in San Francisco. Bodenburg’s opposition brief “offers a strained and convoluted attempt” to support her breach-of-contract claim, and contends for the first time that the breach-of-contract claim is the “sole factual predicate for her allegations,” said the reply. Bodenburg’s defense of her breach-of-contract claim “fails to address the straightforward argument” that she hasn’t identified “any contractual term” that Apple has breached, it said. She also offers “almost no defense” of her claims under three California statutes, including the Unfair Competition Law, it said. Apple argued in its motion to dismiss that these fraud claims are all subject to the “reasonable consumer” standard and must be dismissed because reasonable consumers wouldn’t be misled or confused by Apple’s “clear and accurate disclosures" about the cloud storage provided with iCloud+, it said. Bodenburg’s fraud claims also must be dismissed because they aren’t pleaded with “the requisite particularity” under Federal Rule of Civil Procedure 9(b), it said. Her “deficient allegations” don’t even include “basic facts,” such as when she bought an iCloud+ subscription, which disclosures from Apple regarding iCloud+ she considered to be material and relied upon, “and what she understood them to mean,” it said. Her assertion that her consumer-deception claims aren’t subject to Rule 9(b) “is fatally flawed and, incredibly, she misstates the applicable legal standard for fraud-based claims,” it said. Her first amended complaint is flawed and should be dismissed, it said. Her opposition brief “makes clear that leave to amend would be futile” because the problems in the complaint can’t be fixed “by another amendment,” it said.