On Tuesday, and after Judge Haywood S. Gilliam Jr. dismissed the consumer suit in April, defendant Apple Inc. moved to dispose of the suit for good. It contests Apple’s alleged policy of “terminating the Apple ID accounts of its users who seek credit or debit card payment returns for app purchases that do not work,” the court’s first dismissal opinion said.
In the plaintiff’s case, he allegedly spent $24,000 on apps that stopped working. When he investigated, Apple told him to seek chargebacks from his credit card provider. After doing so, Apple reportedly terminated his Apple ID specifically because he initiated chargebacks, causing him to lose access to his purchased apps and services.
In his first amended complaint, the plaintiff asserted eight counts of fraud, tort, and unfair competition violations based on Apple’s policy. Judge Gilliam dismissed all causes of action, finding those challenging Apple’s terms of service insufficiently pleaded.
The operative complaint states only one claim for relief, breach of contract. It breaks down the cause of action into two alleged breaches. The plaintiff first theorizes that because chargebacks are not a specifically enumerated violation of its terms, Apple’s termination of his account overstepped the mark.
In addition, the plaintiff cites a different terms of service provision that does not specify that Apple can retain users’ unspent account funds when it suspects them of a terms of service violation.
“Having twice failed to show that Apple’s exercise of its contractual right to terminate his Apple ID and access to the Services violated California law and public policy, Plaintiff tries a new tack in the SAC—he now concedes that the Terms are enforceable but contends that Apple allegedly breached them by ‘erroneously’ determining that Plaintiff’s conduct failed to comply with the Terms,” the dismissal motion opens.
Apple specifies several reasons why the claim must be dismissed, citing the plaintiff’s failure to point to any specific term or obligation that Apple breached by terminating his ID and access to its services. “That alone is fatal to Plaintiff’s claim,” the defendant says.
The motion also points to a provision of the agreement allowing Apple to terminate users’ accounts for even suspecting a violation of the company’s terms of service. Quoting the operative complaint, Apple asserts that the plaintiff knew this.
The motion hearing is scheduled for November 17 in Oakland, Calif. The plaintiff is represented by Andrus Anderson, Timoney Knox, Frederick Law Group, and Shub Law Firm. Apple is represented by DLA Piper LLP (US).