Plaintiffs filed a class action against Apple Inc. on behalf of parents who downloaded or permitted their minor children to download a supposedly free app from Apple and then incurred charges for game-related purchases made by their children without their parents’ knowledge or permission.  In re Apple In-App Purchase Litig., 5:11-cv-1758 (N.D. Cal.).  According to the complaint, the children were able to purchase game currencies, which are virtual objects that are used when playing certain games, without their parents’ authorization.  These apps were provided by Apple and advertised as free.  Until early 2011, Apple required users to authenticate their accounts by entering a password before purchasing or downloading an app or buying game currency.  However, once the password was entered, Apple allowed buyers to buy game currencies for up to 15 minutes without re-entering the password.  During this 15 minute window, the children were able to charge their parents’ accounts in amounts ranging from $99.99 to $338.72.

Plaintiffs alleged violations of the California Consumers Legal Remedies Act (“CLRA”), Cal. Civ. Code § 1750 et seq., California’s Unfair Competition Law (“UCL”), Cal. Bus. Prof. Code. § 17200 et seq., breach of implied covenant of good faith and fair dealing, restitution, unjust enrichment, money had and received, and plaintiffs also sought a declaratory judgment.  On March 31, 2012, the district court denied the motion to dismiss against all the claims, except for the claim for breach of implied covenant of good faith, but did provide plaintiffs with leave to amend their complaint.  Plaintiffs made the interesting argument that each app purchase was a separate and voidable contract between Apple and the plaintiffs’ children, which could be disaffirmed by a parent.  Apple countered that the contractual relationship was based on the original Terms & Conditions signed by the plaintiffs.  Therefore, the individual purchases were not voidable.  The district court rejected Apple’s argument and noted that on a motion to dismiss the court must construe the complaint in the light most favorable to the plaintiffs and resolve any ambiguity in their favor.

Abbey Spanier Rodd & Abrams, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.

The California Supreme Court recently issued its long awaited decision in Brinker Restaurant Corp. v. The Superior Court of San Diego County, 2012 Cal. LEXIS 3149 (Cal. Apr. 12, 2012), in which it reversed the decision of the Court of Appeals and concluded that trial courts are not obligated as a matter of law to resolve threshold disputes over the elements of a plaintiff’s claims on a motion for class certification, unless particular determination is necessarily dispositive of the certification question. The Court also determined several threshold issues, upon the parties’ request, including the nature of an employer’s duty to provide meal periods. In addressing that issue, the Court concluded that an employer’s obligation is to relieve its employees of all duty, with the employees thereafter at liberty to use the meal period for whatever purposes he or she desires, but the employer need not ensure that no work is done. 2012 Cal. LEXIS 3149, at *8.

The court held that presented with a class certification motion, a trial court must examine the plaintiff’s theory of recovery, assess the nature of the legal and factual disputes likely to be presented and decide whether individual or common issues predominate. To the extent the propriety of certification depends upon disputed threshold factual or legal questions, a court may, and indeed must resolve them. Recognizing the problems that might arise as a result of the rule against one way intervention, the Brinker court cautioned courts to generally eschew resolution of such issues unless necessary. Therefore, the court held that it is not an abuse of discretion for a trial court to certify a class without deciding one or more issues affecting the nature of a given element if resolution of such issues would not affect the ultimate certification decision. 2012 Cal. LEXIS 3149, at *28.

In reviewing the issue of the scope of an employer’s duty to provide meal periods, the Brinker court concluded that an employer must relieve an employee of all duty for the meal period, but need not ensure that the employee does not work. 2012 Cal. LEXIS 3149, at *49. The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. However, the Court held that work by a relieved employee during a meal break, does not create liability for premium pay by the employer. 2012 Cal. LEXIS 3149, at *64-65.

Abbey Spanier Rodd & Abrams, LLP, located in New York City, is a well-recognized national class action and complex litigation law firm.