No. 18-_________

In the

United States Court of Appeals 

for the 

Ninth Circuit

CHRISTINA GRACE and KEN POTTER, 

Individually and on Behalf of All Others Similarly Situated

Plaintiffs/Petitioners,

vs.

APPLE, INC.

Defendant/Respondent.

On Petition for Permission to Appeal from an Order

of the United States District Court for the Northern District of California

The Honorable Judge Lucy H. Koh, presiding

Case No. 5:17-cv-00551-LHK

PLAINTIFFS-PETITIONERS’ RULE 23(f) PETITION FOR PERMISSION 

TO APPEAL DENIAL OF NATIONWIDE CLASS CERTIFICATION

ALLAN STEYER

JILL M. MANNING

D. SCOTT MACRAE

STEYER LOWENTHAL 

BOODROOKAS ALVAREZ & 

SMITH LLP

One California Street, Suite 300

San Francisco, CA 94111

Telephone: (415) 421-3400

Facsimile: (415) 421-2234

BRUCE L. SIMON

DANIEL L. WARSHAW

ALEXANDER L. SIMON

PEARSON, SIMON & WARSHAW, LLP

44 Montgomery Street, Suite 2450

San Francisco, CA 94104

Telephone: (415) 433-9000

Facsimile: (415) 433-9008

Counsel for Plaintiffs-Petitioners

(Additional Counsel Listed on Inside Cover)

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 1 of 36
DAVID F.E. TEJTEL

FRIEDMAN OSTER & TEJTEL 

PLLC

240 East 79th Street, Suite A

New York, NY 10075

Telephone: (646) 661-5881

BRADLEY W. CALDWELL

JASON D. CASSADY

JOHN AUSTIN CURRY 

CALDWELL CASSADY & CURRY 

2101 Cedar Springs Road, Suite 1000

Dallas, TX 75201

Telephone: (214) 888-4848

Facsimile: (214) 888-4849

Additional Counsel for Plaintiffs-Petitioners

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 2 of 36
CORPORATE DISCLOSURE STATEMENT

Pursuant to Federal Rule of Appellate Procedure 26.1, Petitioners, Christina 

Grace and Ken Potter, are not a “corporate party,” do not issue stock, and are not 

controlled by any publicly held corporation.

Dated: November 5, 2018 Respectfully Submitted,

STEYER LOWENTHAL BOODROOKAS 

ALVAREZ & SMITH LLP

By: /s/ Jill M. Manning

Jill M. Manning (178849)

One California Street, Suite 300

San Francisco, CA 94111

Telephone: (415) 421-3400

Facsimile: (415) 421-2234

jmanning@steyerlaw.com

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 3 of 36
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TABLE OF CONTENTS

Page

I. QUESTIONS PRESENTED ........................................................................ 1

II. INTRODUCTION ......................................................................................... 2

III. STANDARD OF REVIEW........................................................................... 5

IV. PROCEDURAL HISTORY .......................................................................... 6

V. STATEMENT OF FACTS............................................................................ 6

VI. DISCUSSION................................................................................................ 9

A. This Petition is Timely........................................................................... 9

B. The District Court Abused its Discretion by Denying 

Certification of a Nationwide Class................................................................9

1. California Law Applies Nationwide to All Claims Under 

the Parties’ Choice-of-Law Agreement............................................ 9

a. The Proposed Nationwide Class Falls Under the Scope 

of the Choice-of-Law Provision ................................................ 10

b. The Parties' Choice-of-Law Agreement is Enforceable ........... 11

2. The District Court Erroneously Applied the Governmental

Interest Test..................................................................................... 13

a. The District Court Erred in its “Place of the Wrong”

Analysis.................................................................................... 15

b. The District Court Erred in Failing to Balance Relative 

Impairment .............................................................................. 18

3. There are No “Material” Conflicts Among States’ Trespass

to Chattels Laws that Would Affect the Outcome of This Case ............ 20

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 4 of 36
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VII. RELIEF SOUGHT....................................................................................... 24

VIII. CONCLUSION............................................................................................ 24

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TABLE OF AUTHORITIES

CASES Page

Chamberlan v. Ford Motor Co.,

402 F.3d 952 (9th Cir. 2005) ........................................................................ 5

Clothesrigger, Inc. v. GTE Co., 

191 Cal. App. 3d 605 (1987) ................................................................ 17, 19

Hurtado v. Superior Court, 

P.2d 666 (Cal. 1974) ................................................................................... 19

In re Apple Inc. Device Performance Litig.,

No. 18-MD-02827-EJD, 2018 WL 4772311 (N.D. Cal Oct. 1, 2018) ....... 11

In re Complaint of Bankers Trust Co.,

752 F.2d 874 (3d Cir. 1984) ....................................................................... 20

In re Lidoderm Antitrust Litig.,

No. 14-MD-02521-WHO, 2017 WL 679367 (N.D. Cal. Feb. 21, 2017) ... 23

In re U.S. Foodservice Inc. Pricing Litig.,

729 F.3d 108 (2d Cir. 2013) ....................................................................... 23

Lambert v. Nutraceutical Corp.,

870 F.3d 1170 (9th Cir. 2017) ...................................................................... 9

Lozano v. AT & T Wireless Servs., Inc.,

504 F.3d 718 (9th Cir. 2007) ...................................................................... 23

Mazza v. Am. Honda Motor Co.,

666 F.3d 581 (9th Cir. 2012) .............................. 4, 13, 14, 15, 16, 20, 19, 22

McCann v. Foster Wheeler LLC,

225 P.3d 516 (2010) ................................................................. 13, 14, 16, 18

Microsoft Corp. v. Baker,

137 S. Ct. 1702 (2017) .................................................................................. 5

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 6 of 36
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Nedlloyd Lines B.V. v. Superior Court,

834 P.2d 1148 (1992) ................................................................. 9, 10, 11, 12

Netscape Commc’ns Corp. v. St. Paul Mercury Ins. Co.,

No. C 06-00198 JW, 2010 WL 11519412 (N.D. Cal. July 16, 2010) ........ 22

Offshore Rental Co., Inc. v. Continental Oil Co.,

22 Cal. 3d 157 (1978) ................................................................................. 18

Pecover v. Electronic Arts Inc., 

2010 WL 8742757, at *20 (N.D. Cal. Dec. 21, 2010) ............................... 19

Phillips Petroleum Co. v. Shutts,

472 U.S. 797 (1985) .................................................................................... 14

Piping Rock Partners, Inc. v. David Lerner Assocs., Inc.,

946 F. Supp. 2d 957 (N.D. Cal. 2013), aff’d, 609 F. App’x 497 

(9th Cir. 2015) ............................................................................................ 22

Pokorny v. Quixtar, Inc., 

601 F.3d 987 (9th Cir. 2010) ...................................................................... 20

Quintana v. Harris,

663 F.2d 78 (10th Cir. 1981) ...................................................................... 23

Rutledge v. Hewlett-Packard Co.,

238 Cal. App. 4th 1164 (2015).................................................................... 16

Sack v. Low,

478 F.2d 360 (2d Cir. 1973) ....................................................................... 16

Samuel v. University of Pittsburgh,

538 F.2d 991 (3d Cir. 1976) ....................................................................... 24

Soc. Servs. Union, Local 535, Serv. Employees Int’l Union, AFL-CIO v. 

Santa Clara Cty., 609 F.2d 944 (9th Cir. 1979) ......................................... 22

True Health Chiropractic, Inc. v. McKesson Corp.,

896 F.3d 923 (9th Cir. 2018) ...................................................................... 23

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 7 of 36
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United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & 

Serv. Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co., 

593 F.3d 802, 808 (9th Cir. 2010) .............................................................. 21

Veridian Credit Union v. Eddie Bauer, LLC,

295 F. Supp. 3d 1140 (W.D. Wash. 2017) ................................................. 17

Wash. Mut. Bank, FA v. Superior Court, 

15 P.3d 1071 (Cal. 2001) .......................................................... 10, 13, 19, 20

Wershba v. Apple Computer, Inc.,

91 Cal.App.4th 230 (2001) ................................................................... 17, 19

STATUTES, RULES AND REGULATIONS

Federal Rules of Civil Procedure 

23(a) ............................................................................................................. 3

23(b)(2).......................................................................................................... 3

23(b)(3)........................................................................................................ 24

23(f) ............................................................................................... 2, 5, 9, 24

OTHER AUTHORITIES

Restatement (First) of Conflict of Laws

§ 377 (1934)................................................................................................. 16

Restatement (Second) of Conflict of Laws

§ 187 (1971)....................................................................................... 9, 12, 13

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I. QUESTIONS PRESENTED

1. Was it manifest error for the court below (the “District Court”) to disregard 

Plaintiffs’ argument that Apple’s standard iOS “Terms of Service” 

Agreement mandates that this dispute “be governed by and construed in 

accordance with the laws of the State of California, excluding its conflict of 

law principles”?

2. Was it manifest error for the District Court to incorrectly conduct the choiceof-law analysis and fail to apply California law nationwide?

3. Was it manifest error for the District Court to conclude that a “material” 

conflict existed among the nationwide trespass to chattels laws?

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Christina Grace and Ken Potter (“Plaintiffs”) respectfully submit this 

petition (the “Petition”) requesting permission under Federal Rule of Civil 

Procedure 23(f) to appeal the District Court’s September 18, 2018 order granting in 

part and denying in part their motion for class certification (the “Order”).

II. INTRODUCTION

This case arises from Apple’s wrongful conduct in intentionally and 

surreptitiously “breaking” the popular FaceTime feature for millions of its 

customers on April 16, 2014 (the “FaceTime Break” or the “Break”). As Apple 

engineers admitted in contemporaneous emails, Apple “broke” FaceTime by 

selectively exploiting a routine digital certificate expiration, something that 

Apple’s engineers called their “time bomb.” The FaceTime Break was the 

culmination of Apple’s longstanding clandestine plan to reduce “as much as 

possible” its mounting relay usage costs by “forc[ing] folks with older devices to 

update to iOS7.” Thus, on the appointed day, Apple “broke” FaceTime for 

Plaintiffs and millions of other iPhone 4 and 4S device owners throughout the 

United States, rendering them, as one Apple engineer concisely summarized the 

day of the FaceTime Break, “basically screwed.”1

 

1 Specifically, the victims faced a Hobson’s choice: (i) permanently lose FaceTime 

on their devices; (ii) download iOS 7 software that Apple knew would significantly 

and irreversibly impair the functionality of their devices; or (iii) purchase a new 

Apple device that would restore their ability to use FaceTime.

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It is undisputed that Apple broke FaceTime for every iPhone 4 and 4S user 

nationwide that was running a pre-iOS 7 version on April 16, 2014. Accordingly, 

Plaintiffs sought certification of a nationwide class applying California law. The 

District Court found that Plaintiffs met each requirement of Federal Ruleof Civil 

Procedure 23(a) and 23(b)(2), and certified a California-only class. In denying 

nationwide certification, the District Court abused its discretion in three respects, 

each providing an independent basis for reversal. 

First, the District Court failed to address Plaintiffs’ argument that Apple’s 

standard iOS “Terms of Service” Agreements (the “iOS Agreements”)—upon 

which Apple relies in defending this action—include a California choice-of-law 

provision mandating that the agreements “be governed by and construed in 

accordance with the laws of the State of California, excluding its conflict of law 

principles.” California law is clear that this provision is enforceable and that 

Apple intended for California law to govern customer disputes, such as this one, 

“relating to” the iOS software.

Second, separate and apart from the California choice-of-law provision in 

the iOS Agreements, applying California law to the claims of non-California 

residents in this action is neither arbitrary nor unfair. California law applies 

nationwide based on the governmental interest test, as California is the place of the 

wrong and California’s interests will be more impaired than those of other states if 

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its law is not applied. Indeed, Apple is a California corporation headquartered in 

Cupertino, California, and the undisputed evidence demonstrates that every Apple 

employee involved in the conduct underlying the FaceTime Break engaged in that 

conduct in California. 

Third, the District Court misapplied this Court’s analysis in Mazza v. 

American Honda Motor Co., 666 F.3d 581 (9th Cir. 2012). The District Court 

incorrectly relied on Mazza in applying the “place of the wrong” analysis to the 

claims in this case and, in doing so, incorrectly concluded that Apple’s wrongful 

conduct occurred where class members happened to be physically located when 

FaceTime stopped working, such that foreign states have a greater interest in 

applying their laws than California. Moreover, finding one “material” conflict in 

trespass to chattels common law among the 50 states (i.e., whereas forty-seven 

states require actual harm for a trespass to chattels claim, three states require 

merely nominal damages), the District Court incorrectly concluded that California 

law could not be applied nationwide. However, Plaintiffs submitted evidence and 

an econometric damages model (accepted by the District Court) demonstrating that 

Apple’s misconduct caused uniform, actual harm nationwide by devaluing all

affected devices in every state. Thus, there is no conflict between the states—

much less a material conflict—because every device suffered diminution in value 

(and therefore actual harm) as a result of Apple’s conduct and because every owner 

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will recover more than nominal damages. Even if the conflict identified by the 

District Court is deemed “material,” however, it does not rebut nationwide 

certification because it is sufficiently manageable as to not defeat predominance. 

Allowing this appeal is the only equitable result. Absent certification of a 

nationwide class, plaintiffs from states other than California would be required to 

file additional cases in the other 49 states to seek a remedy for the identical 

misconduct and harm challenged in this action. This inefficiency and risk of 

inconsistent rulings is precisely what the class action procedures were designed to 

prevent. Apple should be held accountable for California-based misconduct that 

uniformly harmed its customers nationwide.

III. STANDARD OF REVIEW 

This Court “wields ‘unfettered’ discretion” under Rule 23(f) to grant review 

of a class certification order “on the basis of any consideration.” Microsoft Corp. 

v. Baker, 137 S. Ct. 1702, 1709-10 (2017) (emphasis in original). “Review of class 

certification decisions will be most appropriate when” the decision (i) “presents an 

unsettled and fundamental issue of law relating to class actions, important both to 

the specific litigation and generally, that is likely to evade end-of-the-case review” 

or (ii) is “manifestly erroneous.” Chamberlan v. Ford Motor Co., 402 F.3d 952, 

959 (9th Cir. 2005). Both factors are present here.

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IV. PROCEDURAL HISTORY

Plaintiff Grace initiated this Action on February 2, 2017 (ECF 1), and filed 

the First Amended Complaint adding Plaintiff Potter on April 5, 2017 (ECF 36). 

On September 18, 2018, the District Court issued the Order certifying a class 

consisting of “All owners of non-jailbroken Apple iPhone 4 or Apple iPhone 4S 

devices in California who on April 16, 2014, had iOS 6 or earlier operating 

systems on their iPhone 4 or iPhone 4S devices.” ECF 269. Plaintiffs filed a 

motion for reconsideration on October 2, 2018 (ECF 276), which the District Court 

denied on October 22, 2018. ECF 287.

V. STATEMENT OF FACTS2

Released in 2010 in conjunction with the iPhone 4, FaceTime allows its 

users to engage in real-time audio/video calls. Apple marketed the iPhone 4 by 

heavily touting FaceTime, heralding the device as “the new iPhone 4 featuring 

FaceTime.” FaceTime quickly became immensely popular, with Apple CEO Tim 

Cook reporting at a 2013 stockholders’ meeting that 15 to 20 million FaceTime 

calls were made daily. ECF 174, 12.

Apple initially connected FaceTime calls in one of two ways: (i) the peer-topeer (“P2P”) method, where a direct connection is formed between the caller and 

 

2 Unless otherwise indicated, all facts are taken from the Order.

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the callee; and (ii) the “relay method,” where the caller and callee connect to a 

server that relays the data on behalf of the devices. While P2P FaceTime calls 

were free to Apple, FaceTime calls connected through the “relay method” used 

servers owned by Akamai Technologies, Inc. (“Akamai”) at Apple’s expense. 

For most of 2012, roughly 90-95% of FaceTime calls were connected 

through the “free” P2P method. On November 7, 2012, however, a jury found that 

Apple’s use of the P2P method willfully infringed on patents owned by VirnetX,

making Apple liable to pay an ongoing and substantial royalty for use of VirnetX’s 

patents. To avoid this future liability, Apple shifted 100% of FaceTime calls to the 

non-infringing relay method, dramatically increasing Apple’s relay usage and, in 

turn, Apple’s payments to Akamai. 

Apple immediately began searching for ways to reduce its relay usage and 

associated cost. One strategy involved modifying the next generation of iOS—iOS 

7. But whereas iOS 7 presented a solution for Apple’s relay usage issues, it 

significantly impaired the performance and functionality of iPhone 4 and 4S 

devices. Thus, numerous iPhone 4 and 4S owners resisted migrating to iOS 7, and 

Apple’s relay usage and resulting payments to Akamai remained high. To force 

customers to “upgrade,” Apple broke FaceTime by exploiting a digital certificate.

The iPhone Device Sub-CA (the “Certificate”) was a digital certificate 

necessary for the operability of FaceTime and certain other iOS features. ECF 174 

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at 15. In 2007, an Apple engineer accelerated the expiration date of the Certificate 

from October 2021 to April 16, 2014, and specifically contemplated renewal of the 

Certificate before expiration. Id. By early 2013, Apple’s routine monitoring of 

upcoming certificate expirations revealed that the Certificate would expire on April 

16, 2014, and would cause FaceTime to break if Apple contravened its “standard 

practice” of addressing certificate expirations to avoid any service outages. Id. 

Disregarding several available fixes, Apple decided to fix FaceTime only for users 

who migrated to iOS 7 and for iOS 6 users on certain devices, and to withhold that 

same fix for Class members (i.e., iPhone 4 and 4S devices on iOS 6 or earlier) in 

order to “force” them to migrate to iOS 7. Id. at 16.

As Apple had engineered to occur, “[t]he certificate expirations started at: 

Apr 16 22:54:45 2014 GMT, impacting users that ha[d]n’t upgraded” to iOS 7. Id. 

at 17. Thereafter, “all users with [iOS] 6.0 and older c[ould]n’t make FaceTime 

any longer,” such that, as one Apple employee succinctly stated mere hours after 

the FaceTime Break, tens of millions of Apple customers nationwide were 

“basically screwed . . . and they represented ~30% of our relay traffic.” Id. 

An internal Apple email exchange from two months after the FaceTime 

Break confirms that Apple intentionally engineered the FaceTime Break, and that 

Apple did so to reduce relay usage. Apple Engineering Manager Patrick Gates 

sent an email stating, “I understand we did something in April around iOS 6 to 

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reduce relay utilization. Does this ring a bell for any of you? Got details?” ECF 

174-69. In response, one Apple engineer candidly admitted: “iOS6 was the 

biggest user of relay bandwidth. iOS7 uses a lot less. We broke all iOS6, and the 

only way to get FaceTime working again is to upgrade to iOS7.” Id.

VI. DISCUSSION

A. This Petition is Timely

Rule 23(f)’s fourteen-day deadline is not jurisdictional, and is equitably 

tolled by the filing of a motion for reconsideration. Lambert v. Nutraceutical 

Corp., 870 F.3d 1170, 1174 (9th Cir. 2017), cert. granted, 138 S. Ct. 2675 (2018). 

Plaintiffs timely filed a Motion for Reconsideration on October 2, 2018 (ECF 276), 

fourteen days after entry of the Order. The District Court denied Plaintiffs’ Motion 

for Reconsideration on October 22, 2018. ECF 287. This Petition’s filing within 

fourteen days of the District Court’s order denying reconsideration makes it timely.

B. The District Court Abused its Discretion by Denying Certification 

of a Nationwide Class

1. California Law Applies Nationwide to All Claims Under the 

Parties’ Choice-of-Law Agreement

When determining whether to enforce a choice-of-law provision in a 

contract, California follows Section 187 of the Restatement (Second) of Conflict of 

Laws (1971) (“§ 187”), which “reflect[s] a strong policy favoring enforcement of 

such provisions.” Nedlloyd Lines B.V. v. Superior Court, 834 P.2d 1148, 1151 

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(Cal. 1992). Under this test, a court should “first examine whether the advocate of 

the [choice-of-law] clause has met its burden of establishing that the various claims 

of putative class members fall within its scope,” and second, whether the provision 

is enforceable. Wash. Mut. Bank, FA v. Superior Court, 15 P.3d 1071, 1078 (Cal. 

2001). 

The District Court erred by failing to address the California choice-of-law 

provision in Apple’s iOS Agreements, which provides: “This License will be 

governed by and construed in accordance with the laws of the State of California, 

excluding its conflict of law principles.” ECF 40-1, Section 12; ECF 40-2, Section 

12. This provision mandates the application of California law nationwide. 

a. The Proposed Nationwide Class Falls Under the Scope 

of the Choice-of-Law Provision

A proponent of a choice-of-law provision must show that the provision 

applies to the claims and that the claims arise from or relate to the agreement. 

Wash. Mut., 15 P.3d at 1078. The California Supreme Court construed the phrase 

“governed by” broadly to “encompass[] all causes of action arising from or related 

to that agreement, regardless of how they are characterized.” Nedlloyd, 834 P.2d at 

1154-55. The same analysis also applies “in the context of consumer adhesions 

contracts” like the iOS Agreements. Wash. Mut., 15 P.3d at 1079. 

The iOS Agreements use the same “governed by” language that broadly 

encompasses “all causes of action arising from or related to that agreement, 

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regardless of how they are characterized.” Nedlloyd, 834 P.2d at 1154-1155. 

Plaintiffs’ claims plainly “relate[]” to the iOS Agreements, which not only directly 

address the FaceTime feature itself, but also establish the fundamental relationship 

between Apple and all iPhone users with respect to Apple’s iOS software, which 

formed the basis for Apple’s implementation of the FaceTime Break through 

which Apple self-admittedly “broke all iOS 6” in order to “force folks with older 

devices to update to iOS7.” See ECF 174-41. Apple cannot legitimately dispute 

this, as Apple itself sought judicial notice of the iOS Agreements and represented 

they were “integral to the claims alleged.” ECF 39, 2. 

Indeed, just weeks ago in In re Apple Inc. Device Performance Litigation, 

No. 18-MD-02827-EJD, 2018 WL 4772311 (N.D. Cal. Oct. 1, 2018), the court

held that Apple’s more recent iOS software license agreement, which included the 

exact same choice-of-law language as the iOS Agreements, governed very similar 

conduct by Apple. The plaintiffs brought a trespass to chattels claim challenging 

Apple’s issuance of allegedly damaging iOS updates. Id. at *6. The court found 

the agreement both applicable and enforceable. Id.

b. The Parties’ Choice-of-Law Agreement Is Enforceable

Under California law, courts will enforce an applicable choice-of-law 

provision “unless either (a) the chosen state has no substantial relationships to the 

parties or the transaction and there is no reasonable basis for the parties’ choice, or 

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(b) the application of the law of the chosen state would be contrary to a 

fundamental policy of a state which has a materially greater interest than the 

chosen state.” Nedlloyd, 834 P.2d at 1151; see also § 187. 

Here, the choice-of-law provision in the iOS Agreements is clearly 

enforceable. First, there is a substantial relationship to California because (i) 

Apple is a California corporation headquartered in Cupertino (ECF 66, ¶ 29); and 

(ii) all of the conduct underlying Plaintiffs’ allegations occurred in California. 

ECF 269, 32 ( “Apple does not dispute that Plaintiffs have sufficiently alleged that 

California has a constitutionally sufficient aggregation of contacts to the claims of 

each putative class member in this case”). 

Second, California has the greatest interest in applying its law to regulate 

this California-based misconduct involving one of California’s largest companies. 

That alone is determinative, and the Court need not consider whether California 

law is contrary to a fundamental policy of any other state. Nedlloyd, 834 P.2d at 

1151.

Third, applying California law would not offend other states’ fundamental 

policies. Any conceivable material differences among states’ laws—and there are 

none with regard to trespass to chattels (see infra Section B.3)—are neither 

“fundamental” nor a core part of any other state’s fundamental policy. Indeed, the 

more significant the contacts with the applicable law’s state (here, California), the 

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harder it is to demonstrate that the choice of law contravenes a fundamental policy 

of another state. § 187 cmt. g. Apple’s ties to California are legion, and because 

trespass to chattels laws among states are substantially identical as they apply to 

the facts of this case, it is simply not conceivable that nationwide application of 

California law here would contravene the public policy of any other state.

Thus, the District Court erred in failing to engage in this analysis and failing 

to enforce the parties’ selection of California law in the iOS Agreements. 

2. The District Court Erroneously Applied the 

Governmental Interest Test

Even if there was no enforceable choice-of-law agreement between the 

parties, California law would apply based on application of the governmental 

interest test. The plaintiff bears the burden to demonstrate that application of 

California law comports with due process. Mazza, 666 F.3d at 589. Then “the 

burden shifts to the other side to demonstrate ‘that foreign law, rather than 

California law, should apply to class claims.’” Id. at 590 (quoting Wash. Mut. 

Bank, 15 P.3d at 1081). California law applies “so long as the interests of other 

states are not found to outweigh California’s interest in having its law appl[y].” 

Wash. Mut. Bank, 15 P.3d at 1082.

California courts employ “a three-step governmental interest test.” Mazza, 

666 F.3d at 590 (citing McCann v. Foster Wheeler LLC, 225 P.3d 516 (Cal. 

2010)). First, the court asks whether the respective states’ laws are different “with 

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regard to the particular issue in question.” McCann, 225 P.3d at 527. Second, if 

the laws are materially different, the court asks “whether a true conflict exists,” 

which requires examination of “each jurisdiction’s interest in the application of its 

own law under the circumstances of the particular case.” Id. Third, if a true 

conflict exists, the court determines which state’s interest would be more impaired 

if its law were not applied. Id.

The District Court erred in finding a conflict because no material differences 

exist between California’s trespass to chattels law and the trespass to chattels laws 

of other states.3 See infra Section B.3 (showing lack of material differences); see 

also Mazza, 666 F.3d at 590 (“A problem only arises if differences in state law are 

material, that is, if they make a difference in this litigation.”). Thus, the inquiry 

should have ended at the first step of the governmental interest analysis for 

Plaintiffs’ trespass to chattels claims.

But regardless of whether there are material differences among states’ 

trespass to chattels laws (there are not), the District Court’s determination that 

California law should not apply to all claims nationwide was still error. The third 

prong of the governmental interest test requires application of California law 

 

3 The District Court correctly concluded that California law may constitutionally 

be applied nationwide because Apple’s principal place of business is in California, 

Apple’s actions causing the FaceTime Break were in California, and Apple waived 

any argument to the contrary. ECF 269, 32; see also Phillips Petroleum Co. v. 

Shutts, 472 U.S. 797, 821-22 (1985). 

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because (i) California is the place of the wrong and (ii) California’s interests will 

be more impaired than those of other states if its law is not applied.

a. The District Court Erred in its “Place of the Wrong” 

Analysis 

The District Court erroneously applied the “place of the wrong” analysis, 

which led it to conclude incorrectly that “the place of the wrong here is where class 

members were exposed to the FaceTime Break.” ECF 269, 41. The District 

Court’s conclusion cannot be reconciled with California’s choice-of-law principles 

and long-standing California precedent. 

The District Court relied on Mazza to conclude that “a claim accrues where 

the harm is felt rather than where it originated,” and to find that “the last event 

necessary to make Apple liable was the loss of FaceTime access on class members’ 

iPhones, and that event took place wherever a given class member was on April 6, 

2014.” ECF 269, 40-41. However, Mazza is factually distinguishable because it is 

a false advertising case. In Mazza, this Court concluded that the last event 

necessary to make the defendant liable was the “communication of the 

advertisements to the claimants and their reliance thereon in purchasing 

vehicles.” Mazza, 666 F.3d at 594 (emphasis added). Accordingly, the conduct

occurred in the class members’ home states because that is where they were 

deceived, and where they completed the transactions at issue. See id. Courts in 

other jurisdictions routinely reach the same conclusion because “a cause of action 

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for fraud does not arise until loss is suffered,” which means “the cause of action 

accrues where the loss is suffered.” Sack v. Low, 478 F.2d 360, 366 (2d Cir. 

1973); see also Restatement (First) of Conflict of Laws § 377 n.4 (1934) (“When a 

person sustains loss by fraud, the place of wrong is where the loss is sustained, not 

where fraudulent representations are made.”).

Unlike Mazza, Plaintiffs’ claims in this case are not based on fraud, but 

rather intentional misconduct—all of which undisputedly occurred in California—

through which Apple broke FaceTime for millions of its customers nationwide. 

See McCann, 225 P.3d at 527-32 (finding the “place of the wrong” for purposes of 

a governmental interest analysis is where the conduct occurred). As this Court 

held in Mazza, California has the “predominant interest” in regulating wrongful 

“conduct that occurs within its borders.” 666 F.3d at 592. Permitting a nationwide 

class to seek damages under California law would fully serve that interest. 

Moreover, in circumstances like those present here, California courts 

regularly apply California law to a nationwide class. For example, in Rutledge v. 

Hewlett-Packard Co., a decision that post-dates Mazza, the court reversed the trial 

court’s denial of certification of a nationwide class of consumers who purchased 

computers from HP, a California corporation, because “the alleged injuries 

occurred in California where HP conducted the repairs,” and not in the states 

where plaintiffs resided. 238 Cal. App. 4th 1164, 1187-88 (2015). Similarly, in 

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Wershba v. Apple Computer, Inc., the court affirmed the application of California 

law, finding that “even though transactions may have occurred outside California, 

the representations upon which the causes of action rested . . . necessarily 

emanated from California.” 91 Cal. App. 4th 230, 243 (2001). The Wershba court 

further noted, citing Clothesrigger, Inc. v. GTE Co., 191 Cal. App. 3d 605 (1987), 

that “California courts normally may apply California’s pro-consumer laws to 

consumers from other states: ‘California’s more favorable laws may properly 

apply to benefit nonresident plaintiffs when their home states have no identifiable 

interest in denying such persons full recovery.’” Id. 

Moreover, the District Court’s finding that the applicable law is that of the 

state where each class member happened to be located at the time of the FaceTime 

Break creates incongruous results. Pursuant to the Order, if a Florida resident were 

traveling in Illinois on April 16, 2014, Illinois law would “fortuitous[ly]” apply to 

her claims even though Illinois has no connection to or interest in applying its law 

to her claims. See Veridian Credit Union v. Eddie Bauer, LLC, 295 F. Supp. 3d 

1140, 1153-54 (W.D. Wash. 2017) (“When . . . the location of the injury is 

fortuitous, the weight the court gives to the place where the alleged conduct 

causing the injury occurred increases.”). In that example, Illinois certainly would 

not have the greatest interest in applying its law to a Florida resident’s claim 

against Apple.

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Because this is not a fraud or misrepresentation case, the last event needed to 

create liability is either: (i) Apple originally accelerating the Certificate’s 

expiration date; or (ii) Apple intentionally withholding from the class members the 

same FaceTime solution it provided to its other customers. Because all of that 

conduct undisputedly occurred in California, California is the place of the wrong. 

b. The District Court Erred in Failing to Balance Relative 

Impairment

In balancing the respective states’ interests, the District Court relied solely 

on its analysis of the place of the wrong. ECF 269, 40-41. It neither weighed 

competing interests nor explained why other states’ interests were greater than 

California’s. See id. This was error because California’s governmental interest 

test requires a determination of which state’s interest would be more impaired if its 

law were not applied. McCann, 225 P.3d at 527. The District Court was 

required—but failed—to “carefully evaluate[] and compare[] the nature and 

strength of the interest of each jurisdiction in the application of its own law.” Id.

Under the comparative impairment approach, a state has a significant 

interest in regulating conduct that occurs within that state. Id. at 519. Other 

relevant considerations are “the history and current status of the states’ laws” and 

“the function and purpose of those laws.” Offshore Rental Co. v. Cont’l Oil Co., 

583 P.2d 721, 727 (Cal. 1978). States may also have an interest in “promoting 

freedom of investment and enterprise within [their] borders.” Id. at 728.

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 26 of 36
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Because all of Apple’s wrongful conduct occurred entirely in California, 

California would suffer the greatest impairment to its interests if California law did 

not apply. California alone has a compelling interest in addressing unfair and 

unlawful business practices committed in California. “The California Supreme 

Court has held that, in cases involving resident defendants, foreign states do not 

have a legitimate interest in limiting the amount of recovery for nonresident 

plaintiffs under California law.” Pecover v. Electronic Arts Inc., 2010 WL 

8742757, at *20 (N.D. Cal. Dec. 21, 2010) (quoting Hurtado v. Superior Court, 

P.2d 666 (Cal. 1974)). Accordingly, because “California’s consumer protection 

laws are among the strongest in the country[,]” “‘California’s more favorable laws 

may properly apply to benefit nonresident plaintiffs when their home states have 

no identifiable interest in denying such persons full recovery.’” Wershba, 91 Cal. 

App. 4th at 242-43 (quoting Clothesrigger, 191 Cal. App. 3d at 616).

At bottom, the District Court identified no interest greater than California’s 

that could require application of foreign law. See Wash. Mut. Bank, 15 P.3d at 

1082 (stating that California law applies “so long as the interests of other states are 

not found to outweigh California’s interest in having its law appl[y]”). Further, 

Apple had the burden to make such a showing, but it failed to do so. Mazza, 666 

F.3d at 590. Therefore, the District Court manifestly erred by not applying 

California law nationwide.

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3. There Are No “Material” Conflicts Among States’ Trespass to 

Chattels Laws that Would Affect the Outcome of This Case

The District Court should have applied California law to Plaintiffs’ trespass 

to chattels claim because Apple, the proponent of foreign law, did not meet its 

burden of showing: (i) a material conflict between California law and the law of 

another state; and (ii) that the interests of another state would be more impaired by 

the application of California law than California’s interest would be impaired by 

the application of foreign law.

The burden is on the proponent of foreign law to “identify the applicable 

rule of law in each potentially concerned state and [] show it materially differs 

from the law of California.” Wash. Mut. Bank, 15 P.3d at 1080. ‘“Any differences 

in [the states’] laws must have a significant effect on the outcome of the trial in 

order to present an actual conflict in terms of choice of law.’” Mazza, 666 F.3d at 

590-91 (quoting In re Complaint of Bankers Trust Co., 752 F.2d 874, 882 (3d Cir. 

1984)). Whether a difference in state law presents a material conflict depends on 

the plaintiff’s theory of liability and the underlying facts of the case. See Pokorny 

v. Quixtar, Inc., 601 F.3d 987, 995 (9th Cir. 2010) (finding it is defendant’s burden 

to convince this Court of “material” differences in the law, as shown “on the facts 

of th[e] case.”).

The District Court found a material difference among states’ trespass to 

chattels laws because whereas California and 46 other states require actual harm to 

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21

recover for a trespass to chattels, three states (i.e., North Carolina, Iowa and 

Florida) will also award nominal damages for a trespass to chattels without a 

showing of harm. ECF 269, 37-38. In finding this difference material, the District 

Court disregarded Plaintiffs’ theory of liability and the facts of the case.

The District Court acknowledged that ‘“Plaintiffs’ theory of liability is that 

the FaceTime Break reduced the market value of class members’ iPhones,’” and 

accepted Plaintiffs’ expert’s econometric damages model, which established that 

the FaceTime Break devalued all class members’ iPhone 4 and 4S devices. ECF 

269, 26, 31. Because Plaintiffs’ theory of liability and damages depends upon 

showing actual harm, the difference between California law and the law of the 

three nominal damages states is immaterial. There can be no conflict in these 

circumstances because, if Plaintiffs prevail on their theory of liability, the residents 

of all states will recover actual damages based on the diminution in value caused 

by the FaceTime Break, and the availability of nominal damages in three states 

will not matter. 

The District Court found the actual harm versus nominal harm distinction 

material by erroneously crediting Apple’s theory that the FaceTime Break may 

have caused no harm to Class Members. ECF 269, 37-38. In doing so, the District 

Court erred. See United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied 

Indus. & Serv. Workers Int’l Union, AFL-CIO, CLC v. ConocoPhillips Co., 593 

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 29 of 36
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F.3d 802, 808 (9th Cir. 2010) (reversing denial of certification where the court 

ignored plaintiffs’ actual legal theory and instead credited defendants’ legal theory 

in finding predominance lacking). Properly applying Plaintiffs’ theory of liability 

to the facts of this case (i.e., that the FaceTime Break caused actual harm), the 

difference in state law is immaterial and California law properly applies to all 

nationwide claims.4 Indeed, “[m]ere speculation as to conflicts that may develop at 

the remedy stage is insufficient to support denial of initial class certification.” Soc. 

Servs. Union, Local 535, Serv. Employees Int’l Union, AFL-CIO v. County of 

Santa Clara, 609 F.2d 944, 948 (9th Cir. 1979). 

And yet, even if it were correct that three states’ trespass to chattels law 

differs materially from that of the other 47 states, the District Court erred by failing 

to consider whether the conflict destroys predominance or makes the nationwide 

class unmanageable. See Mazza, 666 F.3d at 594 (allowing that, on remand, the 

trial court could certify subclasses for class members in different states, with 

different jury instruction for materially different bodies of state law). The single 

difference in trespass to chattels law does not overcome the predominance of legal 

 

4 See Piping Rock Partners, Inc. v. David Lerner Assocs., Inc., 946 F. Supp. 2d 

957, 978 (N.D. Cal. 2013), aff’d, 609 F. App’x 497 (9th Cir. 2015) (applying 

California law because the “laws of the two jurisdictions do not differ materially”); 

Netscape Commc’ns Corp. v. St. Paul Mercury Ins. Co., No. C 06-00198 JW, 2010 

WL 11519412, at *4 (N.D. Cal. July 16, 2010) (finding the fact that prejudgment 

interest was mandatory in California and discretionary in Virginia was not 

material). 

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23

and factual issues or make a nationwide or multistate class unmanageable. See In 

re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 127 (2d Cir. 2013) (“[T]he 

crucial inquiry is not whether the laws of multiple jurisdictions are implicated, but 

whether those laws differ in a material manner that precludes the predominance of 

common issues.”).

Plaintiffs moved for reconsideration of the Order, proposing certification of 

two trespass to chattels subclasses: (i) a subclass including the forty-seven states 

that require “actual harm”; and (ii) a subclass including the three states that only 

require “nominal damages.”

5

 As set forth in that motion, the District Court 

committed manifest error by failing to consider and apply those subclasses to 

manage the differences among state laws. See True Health Chiropractic, Inc. v. 

McKesson Corp., 896 F.3d 923, 928 (9th Cir. 2018) (granting 23(f) petition and 

reversing in part denial of class certification where district court should have 

 

5 This case is distinguishable from Lozano v. AT & T Wireless Servs., Inc., 504 

F.3d 718, 729-30 (9th Cir. 2007), where the plaintiff failed to request sub-classes 

until appeal. In their class certification reply brief, Plaintiffs explained that the 

difference in state law could be remedied relatively easily “on a special verdict 

form or ‘through other mechanisms routinely employed in complex litigations like 

this one.’” ECF 225, 13 (citing In re Lidoderm Antitrust Litig., No. 14-MD-02521-

WHO, 2017 WL 679367, at *24 (N.D. Cal. Feb. 21, 2017)). In their motion for 

reconsideration, Plaintiffs proposed two subclasses and demonstrated that both 

complied with Rule 23. ECF 276, 13-20. Plaintiffs should not be required 

“automatically to propose subclasses whenever an opposing party objects to the 

scope of the originally proposed class” but should be afforded “a reasonable 

opportunity to propose subclasses after denial of class certification.” Quintana v. 

Harris, 663 F.2d 78, 80 (10th Cir. 1981). Plaintiffs made such a proposal and it 

was denied by the District Court without explanation. ECF 287.

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 31 of 36
24

certified possible subclass); Samuel v. Univ. of Pittsburgh, 538 F.2d 991, 996 (3d 

Cir. 1976) (finding district court abused its discretion by not investigating the 

possible usefulness of subclasses before decertification was ordered). 

VII. RELIEF SOUGHT

Plaintiffs seek review and reversal of the District Court’s Order denying 

certification of a nationwide class.

VIII. CONCLUSION

The District Court committed manifest error in denying certification of a 

nationwide class applying California law pursuant to Rule 23(b)(3). Accordingly, 

Plaintiffs respectfully request the Court grant their petition for Rule 23(f) 

interlocutory review.

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DATED: November 5, 2018 By: /s/ Jill M. Manning

Jill M. Manning

Allan Steyer (State Bar No. 100318)

Jill M. Manning (State Bar No. 178849)

D. Scott Macrae (State Bar No. 104663)

STEYER LOWENTHAL BOODROOKAS 

ALVAREZ & SMITH LLP

One California Street, Suite 300

San Francisco, CA 94111

Telephone: (415) 421-3400

Facsimile: (415) 421-2234

Bruce L. Simon (State Bar No. 96241)

Daniel L. Warshaw (State Bar No. 185365)

Alexander L. Simon (State Bar No. 305734)

PEARSON, SIMON & WARSHAW, LLP

44 Montgomery Street, Suite 2450

San Francisco, CA 94104

Telephone: (415) 433-9000

Facsimile: (415) 433-9008

David F.E. Tejtel

FRIEDMAN OSTER & TEJTEL PLLC

240 East 79th Street, Suite A

New York, NY 10075

Telephone: (646) 661-5881

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 33 of 36
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Bradley W. Caldwell

Jason D. Cassady 

John Austin Curry

CALDWELL CASSADY & CURRY 

2101 Cedar Springs Road, Suite 1000

Dallas, TX 75201

Telephone: (214) 888-4848

Facsimile: (214) 888-4849

 Attorneys for Petitioners/Plaintiffs

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 34 of 36
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CERTIFICATE OF COMPLIANCE

Pursuant to Ninth Circuit Rule 32-1 and Federal Rule of Appellate 

Procedure 27(d), I certify that this Petition is proportionately spaced in Times New 

Roman, has a typeface of 14 points, was created in Word format, and is 5517

words. This brief therefore complies with the word limitation established by Ninth 

Circuit Rule 5-2(b)-(c), which sets a 20-page limit on petitions for permission to 

appeal (excluding the accompanying documents required by Rule 5(b)(1)(E)), in 

conjunction with Ninth Circuit Rule 32-3(2), which allows the filing of a 

proportionally spaced brief “in which the word count divided by 280 does not 

exceed the designated page limit.” 

Dated: November 5, 2018 By: /s/ Jill M. Manning

Jill M. Manning (State Bar No. 

178849)

STEYER LOWENTHAL 

BOODROOKAS 

ALVAREZ & SMITH LLP

One California Street, Suite 300

San Francisco, CA 94111

Telephone: (415) 421-3400

Facsimile: (415) 421-2234

jmanning@steyerlaw.com

Case 5:17-cv-00551-LHK Document 290-1 Filed 11/06/18 Page 35 of 36
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CERTIFICATE OF SERVICE

I hereby certify that on November 5, 2018, I electronically filed the 

foregoing with the Clerk of the Court for the United States Court of Appeals for 

the Ninth Circuit by using the appellate CM/ECF system. 

Participants in the case who are registered CM/ECF users will be served by 

the appellate CM/ECF system.

I further certify that I have served a copy of the foregoing upon counsel of 

record via electronic mail as set forth below:

Joseph A. Loy

KIRKLAND & ELLIS LLP 

601 Lexington Avenue

New York, New York 10022 

Telephone: (212) 446-4980

joseph.loy@kirkland.com

R. Alexander Pilmer

Tanya Greene

KIRKLAND & ELLIS LLP

333 South Hope Street

Los Angeles, CA 90071

Telephone: (212) 446-4806

alexander.pilmer@kirkland.com

tanya.greene@kirkland.com

Joshua H. Lerner

Sonal N. Mehta

Eugene Novikov

Stephen Elkind

Raghav Krishnapriyan

DURIE TANGRI LLP

217 Leidesdorff Street

San Francisco, CA 94111

Telephone: (415) 362-6666

jlerner@durietangri.com

smehta@durietangri.com

enovikov@durietangri.com

selkind@durietangri.com

rkrishnapriyan@durietangri.com

Dated: November 5, 2018 /s/ Jill M. Manning

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