MacBook Owner’s Fraud Case Fails in the Ninth

SAN FRANCISCO (CN) - The Ninth Circuit should have revived a man's claims that Apple misled him about how well its MacBook Pros could perform processor-intensive tasks like gaming, a dissenting judge said.

Alex Tomek brought the underlying lawsuit nearly five years ago in Sacramento, Calif., complaining that Apple misrepresented MacBook Pros on the market at the time as suitable for tasks that drain computer processors.

When Tomek engaged in activities like high-performance gaming, pro-video editing and graphic-intensive applications, however, his MacBook Pro dramatically slowed down or shut off.

Tomek claimed that Apple knew power-intensive applications would have these effects because its 85-watt power adapter was insufficient to power, and because it received a lot of complaints about the MacBook's battery life.

The Ninth Circuit affirmed dismissal of Tomek's case in a 2-1 unpublished opinion, finding Wednesday that he failed to show that Apple issued misleading advertisements intentionally.

"Tomek's references to customer complaints do not cure this defect because those complaints were posted after Tomek purchased his MacBook Pro," the unsigned ruling states. "Further, the later evidence tendered to show that Apple released a patch solving the issue does not show knowledge of the defect at the time of sale."

Tomek tried three times to amend his claims, the Ninth Circuit said it was also not unfair to block him from trying a fourth time.

Judge Sandra Ikuta dissented from her colleagues on the panel, Judges Andrew Hurwitz and Sidney Thomas, noting that "California courts have been extremely generous to plaintiffs" like Tomek bringing fraud claims brought under the Golden State's Unfair Competition Law.

"Unlike a plaintiff bringing a claim of common-law fraud, a party bringing a UCL fraud claim need not allege that the defendant's actions were 'actually false, known to be false by the perpetrator and reasonably relied upon by a victim who incurs damages,'" Ikuta wrote.

Finding that Tomek sufficiently accused Apple of engaging in a business practice "that is likely to deceive members of the public,'" Ikuta said he succeeded in bringing a UCL fraud claim.

"Apple calls these representations mere puffery and points to disclaimers in its advertising," Ikuta wrote. "But ... even puffery is actionable under the Unfair Competition Law fraudulent prong so long as it could deceive a reasonable consumer."

Tomek initially sought to represent a class of consumers who bought 2011 MacBook Pro with 15-inch and 17-inch screens.

The Ninth Circuit heard the appeal on Nov. 18.

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