Andino
v. Apple, Inc., 2021 WL 1549667, No. 2:20-cv-01628-JAM-AC (E.D. Cal. Apr. 20,
2021)

iTunes
allows consumers to “Rent” or “Buy” movies, television shows, music and other
content. Renting is less expensive; buying leads the content to appear in a
consumer’s “Purchased” folder.

Plaintiff
alleged that this was deceptive, given that “Apple reserves the right to
terminate the consumers’ access and use of content at any time, and in fact,
has done so on numerous occasions.” He brought the usual California claims and
the court declined to dismiss the claim in full.

Injury
in fact: The issue was not whether he might one day lose the content in full,
but whether he spent money he wouldn’t have spent on something he didn’t “own.”
That was sufficiently alleged injury. Likewise, failure to rely on the “buy”
representation in the future was continuing threatened injury for injunctive
relief.

The
court also agreed—consistent with the persuasive article by Aaron Perzanowski and
Chris Hoofnagle—that
“buy” was plausibly deceptive. It commonly means to acquire possession. “It
seems plausible, at least at the motion to dismiss stage, that reasonable
consumers would expect their access couldn’t be revoked.” Apple also argued
that, because a user could download purchased content for full and irrevocable
access, the “Buy” and “Purchased” language was accurate. That was a factual
dispute inappropriate at the motion to dismiss stage.

While Sonner
directed the dismissal of CLRA etc. claims for equitable relief, money damages
weren’t an adequate remedy for future harm, so the inunctive relief claim
survived.

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