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Page 1
Slip Copy, 2012 WL 627702 (C.A.9 (Cal.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 2012 WL 627702 (C.A.9 (Cal.)))
© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
Only the Westlaw citation is currently available.This case was not selected for publication in the Federal Reporter.
(2) manufacturer did not have a duty to disclose alleged defect.
29T Antitrust and Trade Regulation
29TIII Statutory Unfair Trade Practices and Consumer Protection
29TIII(B) Particular Practices
29Tk163 k. Advertising, Marketing, and Promotion. Most Cited Cases
Cal. Bus. & Prof.Code. § 17500 et seq.; Cal. Civ.Code § 1750 et seq.
[2] Antitrust and Trade Regulation 29T 162
29T Antitrust and Trade Regulation
Page 2
Slip Copy, 2012 WL 627702 (C.A.9 (Cal.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 2012 WL 627702 (C.A.9 (Cal.)))
Computer manufacturer did not have a duty to disclose alleged defect in its laptop of degrading solder joints on
logic board that could cause computer to fail beyond its warranty period, and therefore, it not violate California Un-
fair Competition Law, False Advertising Law or Consumer Legal Remedies Act when consumer's laptop stopped
working shortly after expiration of its one-year warranty. Cal. Bus. & Prof.Code. § 17200 et seq.; Cal. Bus. &
Prof.Code. § 17500 et seq.; Cal. Civ.Code § 1750 et seq.
James S. Cahill, Esquire, Henry Huntington Rossbacher, Esquire, Senior, Talin Tenley, The Rossbacher Firm, Taras
P. Kick, Esquire, The Kick Law Firm, APC, Los Angeles, CA, Cynthia B. Chapman, Caddell & Chapman, Houston,
TX, Kevin Peter Roddy, Esquire, Wilentz Goldman & Spitzer, Woodbridge, NJ, Scott R. Shepherd, Shepherd
Finkelman Miller & Shah, LLC, Media, PA, for Plaintiff–Appellant.
Before NOONAN, GOULD, and IKUTA, Circuit Judges.
ORDER
The memorandum in the above-captioned matter filed on December 21, 2011 is AMENDED. The amended
memorandum shall be filed concurrently with this order.
With these changes, the panel has unanimously voted to deny the petition for panel rehearing. Judges Gould and
complaint against Apple Computer Co. (“Apple”) alleging violations of California consumer protection law on be-
half of all purchasers of the iBook G4 Laptop Computer (“the iBook G4”).FN1 The crux of Vitt's contention, building
on his dissatisfaction that his iBook G4 failed shortly after his one year warranty had expired, is that the iBook G4
does not last “at least a couple of years,” which he alleges a reasonable consumer expects from a laptop. Vitt alleges
that this is because one of the solder joints on the logic board of the iBook G4 degrades slightly each time the com-
ling issues of California law. In a different context we have held that to be actionable as an affirmative misrepresen-
tation, a statement must make a “specific and measurable claim, capable of being proved false or of being reasona-
bly interpreted as a statement of objective fact.” Coastal Abstract Serv. v. First Am. Title Ins. Co., 173 F.3d 725, 731
(9th Cir.1999). California courts have also held that “mere puffing” cannot support liability under California con-
sumer protection law. See Consumer Advocates v. Echostar Satellite Corp. ., 113 Cal.App.4th 1351, 1361 n. 3, 8
Page 3
Slip Copy, 2012 WL 627702 (C.A.9 (Cal.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 2012 WL 627702 (C.A.9 (Cal.)))
“built to withstand reasonable shock,” “reliable,” “high performance,” “high value,” an “affordable choice,” and an
“ideal student laptop.” The district court held that these statements are generalized, non-actionable puffery because
missed these claims under Daugherty, 144 Cal.App.4th 824, 51 Cal.Rptr.3d 118, and subsequent federal cases ap-
plying its reasoning to class actions where laptop computers failed as a result of alleged design defects. Oestreicher
v. Alienware Corp., 544 F.Supp.2d 964, 969–70 (N.D.Cal.2008), aff'd 322 Fed. Appx. 489 (9th Cir.2009) (holding
that there was no omission cause of action because any defects manifested after expiration of the warranty period);
Hoey v. Sony Elecs. Inc., 515 F.Supp.2d 1099, 1104–05 (N.D.Cal.2007) (holding that there was no omission cause
Vitt argues that Apple has an affirmative duty to disclose a defect because it has “exclusive knowledge of mate-
rial facts not known to the plaintiff,” namely that the iBook G4 has a defective logic board, and it “actively con-
cealed” that fact, relying on LiMandri v. Judkins 52 Cal.App.4th 326, 336–37, 60 Cal.Rptr.2d 539 (1997). Judkins is
a common law fraud case, but a recent California case has applied its reasoning to the California consumer protec-
year from the date of purchase.” Id. at 253, 134 Cal.Rptr.3d 588. The California Court of Appeals reversed a lower
court's dismissal of the plaintiffs' California Consumer Legal Remedies Act and Unfair Competition Law claims,
holding that the complaint adequately alleged that the defendants had “exclusive knowledge of material facts not
known or reasonably accessible to the plaintiff” and that the defendant had actively concealed those facts. Id. at
255–56, 134 Cal.Rptr.3d 588. The court distinguished Daugherty because plaintiffs were “not attempt[ing] an end-
By contrast, the defect alleged in this case is that one of the iBook G4's components “wears out or breaks over
time because of use” at a rate faster than consumers would reasonably expect. Id . Vitt alleges that when this com-
ponent breaks the computer no longer works, but the defect is not alleged to have any effect on the iBook G4's func-
tionality until it fails. Adopting Vitt's theory would effectively extend Apple's term warranty to “at least a couple of
years” based on subjective consumer expectations. See Oestreicher, 544 F.Supp.2d at 971–72. We would be sur-
Page 4
Slip Copy, 2012 WL 627702 (C.A.9 (Cal.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 2012 WL 627702 (C.A.9 (Cal.)))
to disclose the alleged defect in its iBook G4s.
Vitt's argument that Apple's express warranty is procedurally and substantially unconscionable because it is an
exculpatory contract that has the effect of “releasing [Apple] from responsibility for its own fraud” is without merit.
AFFIRMED.
FN* This disposition is not appropriate for publication and is not precedent except as provided by Ninth
Circuit Rule 36–3.
FN1. Vitt alleges violations of the California Unfair Competition Law, Cal. Bus. & Prof.Code. § 17200 et
seq., the California False Advertising Law, Cal. Bus. & Prof.Code. § 17500 et seq., and the California Con-
sumer Legal Remedies Act, Cal. Civ.Code § 1750 et seq.
C.A.9 (Cal.),2012.
Page 2
Slip Copy, 2012 WL 627702 (C.A.9 (Cal.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 2012 WL 627702 (C.A.9 (Cal.)))
Computer manufacturer did not have a duty to disclose alleged defect in its laptop of degrading solder joints on
logic board that could cause computer to fail beyond its warranty period, and therefore, it not violate California Un-
fair Competition Law, False Advertising Law or Consumer Legal Remedies Act when consumer's laptop stopped
working shortly after expiration of its one-year warranty. Cal. Bus. & Prof.Code. § 17200 et seq.; Cal. Bus. &
Prof.Code. § 17500 et seq.; Cal. Civ.Code § 1750 et seq.
James S. Cahill, Esquire, Henry Huntington Rossbacher, Esquire, Senior, Talin Tenley, The Rossbacher Firm, Taras
P. Kick, Esquire, The Kick Law Firm, APC, Los Angeles, CA, Cynthia B. Chapman, Caddell & Chapman, Houston,
TX, Kevin Peter Roddy, Esquire, Wilentz Goldman & Spitzer, Woodbridge, NJ, Scott R. Shepherd, Shepherd
Finkelman Miller & Shah, LLC, Media, PA, for Plaintiff–Appellant.
Before NOONAN, GOULD, and IKUTA, Circuit Judges.
ORDER
The memorandum in the above-captioned matter filed on December 21, 2011 is AMENDED. The amended
memorandum shall be filed concurrently with this order.
With these changes, the panel has unanimously voted to deny the petition for panel rehearing. Judges Gould and
complaint against Apple Computer Co. (“Apple”) alleging violations of California consumer protection law on be-
half of all purchasers of the iBook G4 Laptop Computer (“the iBook G4”).FN1 The crux of Vitt's contention, building
on his dissatisfaction that his iBook G4 failed shortly after his one year warranty had expired, is that the iBook G4
does not last “at least a couple of years,” which he alleges a reasonable consumer expects from a laptop. Vitt alleges
that this is because one of the solder joints on the logic board of the iBook G4 degrades slightly each time the com-
ling issues of California law. In a different context we have held that to be actionable as an affirmative misrepresen-
tation, a statement must make a “specific and measurable claim, capable of being proved false or of being reasona-
bly interpreted as a statement of objective fact.” Coastal Abstract Serv. v. First Am. Title Ins. Co., 173 F.3d 725, 731
(9th Cir.1999). California courts have also held that “mere puffing” cannot support liability under California con-
sumer protection law. See Consumer Advocates v. Echostar Satellite Corp. ., 113 Cal.App.4th 1351, 1361 n. 3, 8
Page 3
Slip Copy, 2012 WL 627702 (C.A.9 (Cal.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 2012 WL 627702 (C.A.9 (Cal.)))
“built to withstand reasonable shock,” “reliable,” “high performance,” “high value,” an “affordable choice,” and an
“ideal student laptop.” The district court held that these statements are generalized, non-actionable puffery because
missed these claims under Daugherty, 144 Cal.App.4th 824, 51 Cal.Rptr.3d 118, and subsequent federal cases ap-
plying its reasoning to class actions where laptop computers failed as a result of alleged design defects. Oestreicher
v. Alienware Corp., 544 F.Supp.2d 964, 969–70 (N.D.Cal.2008), aff'd 322 Fed. Appx. 489 (9th Cir.2009) (holding
that there was no omission cause of action because any defects manifested after expiration of the warranty period);
Hoey v. Sony Elecs. Inc., 515 F.Supp.2d 1099, 1104–05 (N.D.Cal.2007) (holding that there was no omission cause
Vitt argues that Apple has an affirmative duty to disclose a defect because it has “exclusive knowledge of mate-
rial facts not known to the plaintiff,” namely that the iBook G4 has a defective logic board, and it “actively con-
cealed” that fact, relying on LiMandri v. Judkins 52 Cal.App.4th 326, 336–37, 60 Cal.Rptr.2d 539 (1997). Judkins is
a common law fraud case, but a recent California case has applied its reasoning to the California consumer protec-
year from the date of purchase.” Id. at 253, 134 Cal.Rptr.3d 588. The California Court of Appeals reversed a lower
court's dismissal of the plaintiffs' California Consumer Legal Remedies Act and Unfair Competition Law claims,
holding that the complaint adequately alleged that the defendants had “exclusive knowledge of material facts not
known or reasonably accessible to the plaintiff” and that the defendant had actively concealed those facts. Id. at
255–56, 134 Cal.Rptr.3d 588. The court distinguished Daugherty because plaintiffs were “not attempt[ing] an end-
By contrast, the defect alleged in this case is that one of the iBook G4's components “wears out or breaks over
time because of use” at a rate faster than consumers would reasonably expect. Id . Vitt alleges that when this com-
ponent breaks the computer no longer works, but the defect is not alleged to have any effect on the iBook G4's func-
tionality until it fails. Adopting Vitt's theory would effectively extend Apple's term warranty to “at least a couple of
years” based on subjective consumer expectations. See Oestreicher, 544 F.Supp.2d at 971–72. We would be sur-
Page 4
Slip Copy, 2012 WL 627702 (C.A.9 (Cal.))
(Not Selected for publication in the Federal Reporter)
(Cite as: 2012 WL 627702 (C.A.9 (Cal.)))
to disclose the alleged defect in its iBook G4s.
Vitt's argument that Apple's express warranty is procedurally and substantially unconscionable because it is an
exculpatory contract that has the effect of “releasing [Apple] from responsibility for its own fraud” is without merit.
AFFIRMED.
FN* This disposition is not appropriate for publication and is not precedent except as provided by Ninth
Circuit Rule 36–3.
FN1. Vitt alleges violations of the California Unfair Competition Law, Cal. Bus. & Prof.Code. § 17200 et
seq., the California False Advertising Law, Cal. Bus. & Prof.Code. § 17500 et seq., and the California Con-
sumer Legal Remedies Act, Cal. Civ.Code § 1750 et seq.
C.A.9 (Cal.),2012.
