Maria et al v. Apple Computer, Inc. Doc.

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Case 1:07-cv-22040-AJ Document 6 Entered on FLSD Docket 10/22/2007 Page 1 of 12

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 07-22040-CIV-JORDAN/TORRES

ANGELY MARIA and

TODD NARSON, individually,
and on behalf of all others
similarly situated,

Plaintiffs,

vs.

APPLE COMPUTER, INC., a

foreign corporation for profit,

Defendant.
_____________________________________/

DEFENDANT APPLE COMPUTER, INC.’S ANSWER AND

DEFENSES TO CLASS ACTION COMPLAINT

Defendant Apple Computer, Inc. (“Defendant”), hereby responds and

answers the Class Action Complaint (“Complaint”) of Plaintiffs Angely Maria and

Todd Narson (“Plaintiffs”) as follows:

1. Answering paragraph 1 of the Complaint, Defendant admits that

Plaintiffs purport to bring an action pursuant to 15 U.S.C. § 1681, et seq., and that

this Court has jurisdiction. Except as expressly admitted, Defendant denies the

remaining allegations contained in paragraph 1.

2. Answering paragraph 2 of the Complaint, Defendant admits that it

does business in Miami-Dade County, Florida and that venue is proper in this

Court. Defendant admits that it sold and provided products, including iPod

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products, to residents of this District. Except as expressly admitted, Defendant

denies the remaining allegations contained in paragraph 2.

3. Answering paragraph 3 of the Complaint, Defendant is without

knowledge or information sufficient to respond to the truth of the allegations

contained therein and, on that basis, neither admits nor denies the allegations in

paragraph 3 of the Complaint.

4. Answering paragraph 4 of the Complaint, Defendant admits that

Plaintiffs purport to bring an action on behalf of themselves and all others

similarly situated under 15 U.S.C. § 1681, et seq. Except as expressly admitted,

Defendant denies the remaining allegations contained in paragraph 4.

5. Answering paragraph 5 of the Complaint, Defendant admits that it is a

California corporation, has its principal place of business in Cupertino, California,

and is authorized to do business in the State of Florida. Defendant admits that it

conducts business with, and accepts credit card payments from, residents in the

Southern District of Florida and throughout the United States through the internet.

Except as expressly admitted, Defendant denies the remaining allegations

contained in paragraph 5.

6. Answering paragraph 6 of the Complaint, Defendant admits that 15

U.S.C. § 1681c(g) provides that: “No person that accepts credit cards or debit

cards for the transaction of business shall print more than the last five digits of the

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card number or the expiration date upon any receipt provided to the cardholder at

the point of sale or transaction.” Except as expressly admitted, Defendant denies

the remaining allegations contained in paragraph 6.

7. Defendant is without knowledge or information sufficient to form a

belief as to the truth of the allegations contained therein and on that basis, denies

the allegations contained in paragraph 7.

8. Defendant neither admits nor denies the allegations contained in

paragraph 8 as the statements set forth therein purport to describe legal

conclusions and recite the law, and not facts.

9. Defendant denies each and every allegation contained in paragraph 9

of the Complaint.

10. Defendant denies the first sentence of paragraph 10. The second

sentence of paragraph 10 is a legal conclusion, is argumentative, and requires no

response. To the extent a response is necessary, Defendant denies the second

sentence of paragraph 10.

11. Defendant denies each and every allegation contained in paragraph 11

of the Complaint.

12. Answering paragraph 12 of the Complaint, Defendant admits that

Plaintiffs purport to seek statutory damages, punitive damages, costs and attorneys

fees, as well as a permanent injunction pursuant to 15 U.S.C. § 1681 et seq. on

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behalf of themselves and their proposed class. Except as expressly admitted,

Defendant denies that Plaintiffs are entitled to the relief sought and denies the

remaining allegations in paragraph 12.

CLASS ACTION ALLEGATIONS

13. Answering paragraph 13 of the Complaint, Defendant admits that

Plaintiffs purport to bring an action on behalf of themselves and all others

similarly situated, which Plaintiffs refer to as “Class Members.” Defendant denies

that this action may be certified as a class action under Fed. R. Civ. P. 23(a) or

23(b) and, except as expressly admitted, denies the remaining allegations of

paragraph 13.

14. Answering paragraph 14 of the Complaint, Defendant admits that

Plaintiffs purport to bring an action on behalf of a class defined therein. Defendant

denies that the class as so defined may be certified and, except as expressly

admitted, denies the remaining allegations of paragraph 14.

15. Defendant denies the factual allegations contained in paragraph 15 of

the Complaint. Moreover, paragraph 15 of the Complaint contains legal

conclusions and arguments to which no response is required. To the extent any

response is required, Defendant denies the allegations in paragraph 15.

16. Defendant denies each and every allegation contained in paragraph 16

of the Complaint.

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17. Defendant is without knowledge or information sufficient to form a

belief as to the truth of the allegations contained therein and, on that basis, denies

each and every allegation contained in paragraph 17 of the Complaint.

18. Defendant denies each and every allegation contained in paragraph 18

of the Complaint.

19. Defendant denies each and every allegation contained in paragraph 19

of the Complaint, including all its subparts.

20. Defendant denies each and every allegation contained in paragraph 20

of the Complaint.

21. Defendant denies each and every allegation contained in paragraph 21

of the Complaint.

22. Defendant denies each and every allegation contained in paragraph 22

of the Complaint.

CLAIM FOR RELIEF

Violation of 15 U.S.C. § 1681 et seq.

23. Defendant hereby incorporates as though fully set forth herein its

responses to paragraphs 1 through 22 of Plaintiffs’ Complaint above.

24. Defendant denies each and every allegation contained in paragraph 24

of the Complaint.

25. Defendant denies each and every allegation contained in paragraph 25

of the Complaint.

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26. Defendant denies each and every allegation contained in paragraph 26

of the Complaint.

27. Defendant admits that Plaintiffs do not seek to quantify or recover

actual damages in this case, either for themselves or the Class Members. Except

as expressly stated, Defendant denies the remaining allegations in paragraph 27 of

the Complaint.

28. Defendant denies each and every allegation contained in paragraph 28

of the Complaint.

29. Defendant denies each and every allegation contained in paragraph 29

of the Complaint.

30. Answering paragraph 30 of the Complaint, Defendant is without

knowledge or information sufficient to respond to the truth of the allegations

contained therein and, on that basis, neither admits nor denies the allegations in

paragraph 30 of the Complaint.

31. Any allegation of the Complaint not specifically admitted is denied.

DEFENSES

Defendant hereby asserts the following defenses to Plaintiffs’ claims for

relief without assuming the burden of proof when such burden would otherwise

be on the Plaintiffs.

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FIRST DEFENSE
(Failure to State a Claim)

32. The Complaint, and each purported claim for relief therein, fails to

state a claim upon which relief can be granted. The facts as pled in the Complaint

do not constitute a violation of FACTA, 15 U.S.C. § 1681 et seq.

SECOND DEFENSE
(No Liability)

33. Defendant did not commit any wrongful act against Plaintiffs and/or

the members of the putative class. Accordingly, Defendant is not responsible for

any alleged damages to Plaintiffs and/or the members of the putative class.

THIRD DEFENSE
(Disproportionate Damages)

34. Defendant alleges that the statutory damages, punitive damages, and

attorneys’ fees and/or costs sought by Plaintiffs if a class is certified are so

disproportionate to the lack of any actual harm that such recovery is barred by law.

FOURTH DEFENSE
(Due Process)

35. The application of FACTA to Defendant would violate the Due

Process Clause of the Constitution. Such application of FACTA would be void for

vagueness because the terms “receipt,” “print,” and “point of sale or transaction”

are not clearly defined to encompass the type of internet transmission at issue in

this case. Additionally, the statutory damages demanded in the Complaint would

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violate the Due Process Clause because the damages would be highly

disproportionate to the actual or potential harm caused by the complained-of

conduct.

FIFTH DEFENSE
(Punitive Damages Unavailable and Unconstitutional)

36. Plaintiffs are not entitled to an award of punitive or exemplary

damages in this action. The Complaint fails to allege facts sufficient to warrant an

award of punitive damages. A punitive damages award would be an

unconstitutional breach of Defendant’s rights to due process under the fourteenth

amendment of the United States Constitution, under State Farm v. Campbell, and

safeguards provided under the Constitution of the State of California.

SIXTH DEFENSE
(Reasonableness and Good Faith of Defendant)

37. The claims of Plaintiffs and/or the members of the putative class are

barred by the fact that Defendant acted reasonably and in good faith at all times

material herein, based on the relevant facts and circumstances known by

Defendant at the time Defendant so acted.

SEVENTH DEFENSE
(Not Willful)

38. Defendant is informed and believes, and based thereon alleges, that if

any violation of 15 U.S.C. § 1681c(g) occurred, which Defendant specifically

denies, said violation was not willful within the meaning of 15 U.S.C. § 1681n(a).

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EIGHTH DEFENSE
(Compliance with Law)

39. At all times mentioned herein, Defendant’s conduct complied with the

applicable statutes and laws. The facts as pled in the Complaint do not constitute a

violation of FACTA, 15 U.S.C. §1681 et seq.

NINTH DEFENSE
(No Basis for Injunctive Relief)

40. Plaintiffs’ claims for injunctive relief are barred. There is no basis for

injunctive relief for alleged violations of FACTA, 15 U.S.C. §1681 et seq.

Moreover, Plaintiffs are not entitled to injunctive relief because, at all times

mentioned herein, Defendant complied and continues to comply with the

applicable statutes and laws.

TENTH DEFENSE
(Reservation of Additional Defenses)

41. Defendant reserves the right to assert and rely upon such other and

further defenses as may be supported by the facts to be determined by full and

complete discovery.

PRAYER FOR RELIEF

WHEREFORE, Defendant prays as follows:

1. That Plaintiffs take nothing by this action;

2. That the Complaint be dismissed in its entirety;

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3. That Plaintiffs be denied each and every demand and prayer for relief;

4. That Defendant recover its costs and attorney’s fees in this action; and

5. For such other and further relief as the Court deems just and proper.

Respectfully submitted,

Dated: October 22, 2007

s/ Janet T. Munn
jmunn@ebglaw.com
Florida Bar No. 501281
EPSTEIN BECKER & GREEN, P.C.
200 S. Biscayne Boulevard, Suite
2100
Miami, FL 33131
305-375-7592 (Telephone)
305-982-1521 (Facsimile)
Attorneys for Defendant
Of Counsel:

Martin R. Boles, Esq.

Mark T. Cramer, Esq.
Kirkland & Ellis LLP
777 S. Figueroa Street
Los Angeles, California 90017-5800

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 22nd day of October, 2007, I

electronically filed the foregoing with the Clerk of the Court by using CM/ECF

system. I also certify that the foregoing document is being served this day on all

counsel of record identified on the attached Service List in the manner specified

either via transmission of Notices of Electronic Filing generated by CM/ECF or in

some other authorized manner for those counsel who are not authorized to receive

electronically Notices of Electronic Filing:

Matthew Sarelson
msarelson@sarelson.com
Sarelson, P.A.
555 Washington Avenue, Suite 200
Miami Beach, Florida 33139-6639
Telephone: 305-674-3353
Fax: 800-421-9954

John Elliott Leighton

Patricia Kennedy
Leighton@leesfield.com
Leesfield Leighton & Partners, P.A.
2350 S. Dixie Highway
Miami, Florida 33133-2314
Telephone: 305-854-4900
Fax: 305-854-8266

Jay M. Levy, P.A.

jay@jaylevylaw.com
9130 South Dadeland Boulevard
Two Datran Center, Suite 1510
Miami, Florida 33156
Telephone: 305-670-8100
Fax: 305-670-4827

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Attorneys for Plaintiffs

s/Janet T. Munn

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