Joseph Birdsong v. Apple, Inc.

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH BIRDSONG, Individually and 
on Behalf of Others Similarly
Situated; BRUCE WAGGONER,
No. 08-16641
Individually and on Behalf of
Others Similarly Situated,
Plaintiffs-Appellants,
 D.C. No.
5:06-CV-02280-JW
v. OPINION
APPLE, INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
James Ware, District Judge, Presiding
Argued and Submitted
October 8, 2009—San Francisco, California
Filed December 30, 2009
Before: J. Clifford Wallace, David R. Thompson and
Sidney R. Thomas, Circuit Judges.
Opinion by Judge Thompson
16867
BIRDSONG v. APPLE, INC. 16869
COUNSEL
Jeff D. Friedman, Berkeley, California, for the plaintiffs-
appellants.
David Bernick, New York, New York, for the defendant-
appellee.
16870 BIRDSONG v. APPLE, INC.
OPINION
THOMPSON, Senior Circuit Judge:
Plaintiffs-appellants Joseph Birdsong and Bruce Waggoner
(collectively, the “plaintiffs”) filed a class action complaint
claiming that defendant-appellee Apple, Inc.’s (“Apple”) iPod
is defective because it poses an unreasonable risk of noise-
induced hearing loss to its users. The plaintiffs appeal the dis-
trict court’s dismissal of their third amended complaint. The
district court determined that the plaintiffs failed to state
claims for breach of the implied warranty of merchantability
and fitness for a particular purpose, and that they lacked
standing to assert a claim under California’s Unfair Competi-
tion Law (“UCL”).
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
I
Background
Apple’s iPod is an electronic device which stores and plays
digital audio files. Each iPod comes with a set of detachable
“earbud” headphones. The iPod can be used without its ear-
bud headphones to play music through different headphones.
According to the third amended complaint, iPods have the
capability of producing sounds as loud as 115 decibels. Apple
includes a warning with each iPod:
Avoid Hearing Damage
Warning: Permanent hearing loss may occur if ear-
phones or headphones are used at high
volume. You can adapt over time to a
higher volume of sound, which may
sound normal but can be damaging to
BIRDSONG v. APPLE, INC. 16871
your hearing. Set your iPod’s volume to
a safe level before that happens. If you
experience ringing in your ears, reduce
the volume or discontinue use of your
iPod.
Apple also provided warnings on its website.
Birdsong bought an Apple iPod in May 2005 and another
in October 2005. Waggoner bought an Apple iPod in January
2005 and, six months later, a set of noise-cancelling head-
phones to be used with his iPod.
Birdsong, a Louisiana resident, filed this action in the
Western District of Louisiana, seeking to represent a state-
wide class of iPod consumers. The case was transferred to the
Northern District of California on the parties’ joint motion
pursuant to 28 U.S.C. § 1404(a). Birdsong then filed a first
amended complaint asserting claims under California law.
Apple moved to dismiss the first amended complaint and
Birdsong responded by filing a second amended complaint.
Apple then moved to partially dismiss the second amended
complaint. The district court granted Apple’s motion, and
granted Birdsong leave to amend.
Waggoner, a California resident, then joined Birdsong in
filing a third amended complaint against Apple, alleging
claims for (1) breach of express warranty, Cal. Com. Code
§ 2313; (2) breach of the implied warranty of merchantability,
Cal. Com. Code § 2314; (3) breach of the implied warranty of
fitness for a particular purpose, Cal. Com. Code § 2315; (4)
violation of the California UCL, Cal. Bus. and Prof. Code
§§ 17220 et seq.; (5) violations of California’s Song-Beverly
Consumer Warranty Act, Cal. Civ. Code §§ 1790 et seq.; and
(6) violations of the federal Magnuson-Moss Warranty Act,
15 U.S.C. §§ 2301 et seq. Birdsong and Waggoner purported
to represent a nationwide class of iPod purchasers. The dis-
16872 BIRDSONG v. APPLE, INC.
trict court dismissed the third amended complaint, and Bird-
song and Waggoner appeal.1
II
Implied Warranty of Merchantability
[1] The California Commercial Code implies a warranty of
merchantability that goods “[a]re fit for ordinary purposes for
which such goods are used.” Cal. Com. Code § 2314(2)(c).2
The implied warranty “provides for a minimum level of quali-
ty.” Am. Suzuki Motor Corp. v. Superior Court, 37 Cal. App.
4th 1291, 1296 (Cal. Ct. App. 1995) (quotation omitted). A
breach of the warranty of merchantability occurs if the prod-
1
The parties do not dispute that the district court had subject matter
jurisdiction over the class action. We agree. The district court had original
jurisdiction pursuant to the Class Action Fairness Act (“CAFA”), 28
U.S.C. § 1332(d). Plaintiffs’ class action satisfied CAFA’s amount in con-
troversy, numerosity and minimal diversity requirements. See Lowdermilk
v. U.S. Bank Nat’l Ass’n, 479 F.3d 994, 997 (9th Cir. 2007); Abrego
Abrego v. The Dow Chem. Co., 443 F.3d 676, 683 (9th Cir. 2006). Addi-
tionally, section 1332(d)’s enumerated exceptions to federal jurisdiction
do not apply. See 28 U.S.C. §§ 1332(d)(4)(A)-(B).
2
The substantive elements are the same under the Song-Beverly Act and
Magnuson-Moss Act. Cal. Civ. Code §§ 1791, et seq.; 15 U.S.C. § 2301,
et seq. Under both, the court applies state warranty law. 15 U.S.C.
§§ 2301(7), 2310(d)(1); see Dominguez v. Am. Suzuki Motor Corp., 160
Cal. App. 4th 53, 58 (2008); see Milicevic v. Fletcher Jones Imports, Ltd.,
402 F.3d 912, 918 (9th Cir. 2005). State law requires that the goods (1)
pass without objection in the trade under the contract description; (2) are
fit for the ordinary purposes for which those goods are used; (3) are ade-
quately contained, packaged, and labeled; and (4) conform to the promises
or affirmation of fact made on the container or label. Cal. Civ. Code
§ 1791.1. Both parties agree that the plaintiffs’ claims under California’s
Song-Beverly Consumer Warranty Act, Cal. Civ. Code §§ 1790 et seq.
and the federal Magnuson-Moss Warranty Act, 15 U.S.C. §§ 2301 et seq.
require the plaintiffs to plead successfully a breach of state warranty law.
Thus, because we conclude that the plaintiffs have failed to state a claim
for breach of an express or implied warranty, their claims under these two
statutes are also properly dismissed.
BIRDSONG v. APPLE, INC. 16873
uct lacks “even the most basic degree of fitness for ordinary
use.” Mocek v. Alfa Leisure, Inc., 114 Cal. App. 4th 402, 406
(Cal. Ct. App. 2003) (citing Cal. Com. Code § 2314(2)).
The plaintiffs argue the district court erred in determining
that the third amended complaint failed to sufficiently plead
an implied warranty claim. They alleged that the iPod (1)
comes with “stock ear buds . . . designed to be placed deep
into the ear canal rather than over the ears, which increases
the danger of hearing damage,” (2) lacks “noise isolating or
cancelling properties,” and (3) lacks any volume meter that
will inform users they are listening at dangerous levels.
The plaintiffs contend the district court failed to take their
factual allegations as true, and instead made its own counter-
findings that any dangers of hearing loss were “obvious” and
“avoidable.” The district court also determined the danger of
hearing loss did not exist unless the consumer decided to use
the iPod “in an extreme way.”
[2] The district court did not err. The plaintiffs admit that
the iPod has an “ordinary purpose of listening to music,” and
nothing they allege suggests iPods are unsafe for that use or
defective. The plaintiffs recognize that iPods play music, have
an adjustable volume, and transmit sound through earbuds.
The third amended complaint includes statements that (1) the
iPod is capable of playing 115 decibels of sound; (2) consum-
ers may listen at unsafe levels; and (3) iPod batteries can last
12 to 14 hours and are rechargeable, giving users the opportu-
nity to listen for long periods of time. Taken as true, such
statements suggest only that users have the option of using an
iPod in a risky manner, not that the product lacks any mini-
mum level of quality. See Am. Suzuki, 37 Cal. App. 4th at
1296.
The plaintiffs rely upon Hicks v. Kaufman & Broad Home
Corp., 89 Cal. App. 4th 908 (Cal. Ct. App. 2001), but that
case is distinguishable. In Hicks, homeowners brought a puta-
16874 BIRDSONG v. APPLE, INC.
tive class action alleging a defect in the foundations of their
homes. The defect arose from the use of a material called
Fibermesh, which, according to the homeowners, caused their
foundations to “crack badly” and resulted in “insect and ver-
min infestation, bumps in the floor and premature wearing of
carpeting.” Id. at 923. Although some of the foundations had
not yet cracked, the court cited expert testimony suggesting
that the cracks were “most likely” to develop, and stated, “We
see no reason why a homeowner should have to wait for the
inevitable injuries to occur before recovering damages to
repair the defect and prevent injuries from occurring.” Id. at
923.
The Hicks plaintiffs identified the defect in the foundations,
which was the use of Fibermesh, and the injury inevitably
caused by that defect, a cracked foundation. Id. Hicks distin-
guished cases in which “there was no history of the products
failing.” Id.[3] In the present case, the plaintiffs make no allegations of
any history of malfunction, but merely suggest possible
changes to the iPod which they believe would make the prod-
uct safer: (1) earbuds with noise-reduction features; (2) vol-
ume control software; (3) more and different warnings printed
onto the actual iPod; and (4) a digital meter to display the out-
put volume in decibels. The plaintiffs fail to allege, however,
how the absence of their suggested changes caused any user
an injury. The plaintiffs do not allege the iPods failed to do
anything they were designed to do nor do they allege that
they, or any others, have suffered or are substantially certain
to suffer inevitable hearing loss or other injury from iPod use.
Cf. Hicks, 89 Cal. App. 4th at 923. Accordingly, the district
court correctly determined that the plaintiffs failed to allege
sufficiently the breach of an implied warranty of merchanta-
bility. See id.; Am. Suzuki, 37 Cal. App. 4th at 1298.
BIRDSONG v. APPLE, INC. 16875
III
Express Warranty and Implied Warranty of Fitness for a
Particular Purpose
The plaintiffs’ third amended complaint alleged claims for
breach of an express warranty and breach of the implied war-
ranty of fitness for a particular purpose. However, the plain-
tiffs have apparently abandoned those claims on appeal, as
their opening brief contains no discussion of them. “We
review only issues which are argued specifically and dis-
tinctly in a party’s opening brief . . . We will not manufacture
arguments for an appellant, and a bare assertion does not pre-
serve a claim, particularly when, as here, a host of other issues
are presented for review.” Greenwood v. Fed. Aviation
Admin., 28 F.3d 971, 977 (9th Cir. 1994). Thus, we affirm the
district court’s dismissal of those claims.
IV
California’s Unfair Competition Law
[4] California’s UCL prohibits unfair competition by means
of any unlawful, unfair or fraudulent business practice. Cal.
Bus. & Prof. Code §§ 17200-17210. Each prong of the UCL
is a separate and distinct theory of liability. Kearns v. Ford
Motor Co., 567 F.3d 1120, 1127 (9th Cir. 2009).
[5] To have standing under California’s UCL, as amended
by California’s Proposition 64, plaintiffs must establish that
they (1) suffered an injury in fact and (2) lost money or prop-
erty as a result of the unfair competition. Cal. Bus. & Prof.
Code § 17204; Walker v. Geico Gen. Ins. Co., 558 F.3d 1025,
1027 (9th Cir. 2009). “In approving Proposition 64, the Cali-
fornia voters declared their intent ‘to prohibit private attor-
neys from filing lawsuits for unfair competition where they
have no client who has been injured in fact under the standing
requirements of the United States Constitution.’ ” Buckland v.
16876 BIRDSONG v. APPLE, INC.
Threshold Enters., Ltd., 155 Cal. App. 4th 798, 814 (Cal. Ct.
App. 2007) (quoting Prop. 64, § 1, (e)) (emphasis in original).
Thus, to plead a UCL claim, the plaintiffs must show, consis-
tent with Article III, that they suffered a distinct and palpable
injury as a result of the alleged unlawful or unfair conduct.
Buckland, 155 Cal. App. 4th at 814 (quoting Havens Realty
Corp. v. Coleman, 455 U.S. 363, 372 (1982)) (internal quota-
tion marks omitted). The requisite injury must be “an invasion
of a legally protected interest which is (a) concrete and partic-
ularized, and (b) actual or imminent, not conjectural or hypo-
thetical.” Buckland, 155 Cal. App. 4th at 814 (quoting Lujan
v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (internal
quotation marks omitted).
The plaintiffs contend the district court erred in dismissing
their UCL claims for lack of standing.3 The plaintiffs maintain
they alleged that they suffered an injury in fact and argue the
district court incorrectly required a showing of reliance to sat-
isfy the UCL’s requirement that they must have lost money or
property as a result of Apple’s conduct. Cal. Bus. & Prof.
Code § 17204. Because we conclude that the plaintiffs have
not alleged the requisite injury in fact to have standing, and
affirm the district court’s decision on that basis, we need not
decide whether the district court erred in requiring an allega-
tion of reliance, or resolve, more broadly, what standard of
causation applies under the UCL.4
3
The plaintiffs assert claims under the UCL’s “unlawful” and “unfair”
prongs. As a threshold matter, the plaintiffs cannot state a UCL claim
under the “unlawful” prong because such a claim is predicated solely on
implied warranty violations of the law, which they failed to allege. See
Webb v. Smart Document Solutions, LLC, 499 F.3d 1078, 1082 (9th Cir.
2007) (noting that the alleged conduct “must violate a law . . . in order for
Plaintiffs to state a claim for relief under Section 17200’s ‘unlawful’
prong”).
4
In addition to meeting the UCL’s standing requirements, the plaintiffs
must also satisfy the federal standing requirements under Article III. See
Cantrell v. City of Long Beach, 241 F.3d 674, 683 (9th Cir. 2001) (holding
that a party asserting state law claims in federal court “must meet the stric-
BIRDSONG v. APPLE, INC. 16877
1. The Plaintiffs Have Not Alleged An Injury To Them-
selves
The plaintiffs do not claim that they suffered or imminently
will suffer hearing loss from their iPod use. The plaintiffs do
not even claim that they used their iPods in a way that
exposed them to the alleged risk of hearing loss. At most, the
plaintiffs plead a potential risk of hearing loss not to them-
selves, but to other unidentified iPod users who might choose
to use their iPods in an unsafe manner. The risk of injury the
plaintiffs allege is not concrete and particularized as to them-
selves. See Lujan, 504 U.S. at 561 n.1 (“By particularized, we
mean that the injury must affect the plaintiff in a personal and
individual way.”); Warth v. Seldin, 422 U.S. 490, 501 (1975)
(“[T]he plaintiff still must allege a distinct and palpable injury
to himself, even if it is an injury shared by a large class of
other possible litigants.”) (emphasis added). The plaintiffs do
not dispute this deficiency or claim that they can amend their
pleading to include allegations that they were exposed to the
risk of hearing loss based on their iPod use.
The plaintiffs have not shown the requisite injury to them-
selves and therefore lack standing. See id.; Cal. Bus. & Prof.
Code §§ 17203-17204 (authorizing representative UCL
claims on behalf of others only if the claimant meets the
standing requirements, including injury in fact); Buckland,
155 Cal. App. 4th at 812 (noting that California Proposition
64 requires plaintiffs pursuing representative claims to meet
the new standing requirements).
ter federal standing requirements of Article III”); Lee v. Am. Nat. Ins. Co.,
260 F.3d 997, 1001-02 (9th Cir. 2001). Because we conclude the plaintiffs
lack standing under the UCL, we need not reach the question whether they
have standing under Article III. We note that insofar as the UCL incorpo-
rates Article III’s injury in fact requirement, see Buckland, 155 Cal. App.
4th at 814, the plaintiffs would lack an Article III injury in fact for the
same reasons discussed below.
16878 BIRDSONG v. APPLE, INC.
2. The Alleged Injury Is Hypothetical
[6] Although the plaintiffs allege that Apple has sold more
than 100 million iPods, they do not claim that they, or anyone
else, have suffered or are substantially certain to suffer hear-
ing loss from using an iPod. As discussed above, as a result
of this omission, the plaintiffs fail to state an implied warranty
claim, and they have no standing to assert a UCL claim. The
plaintiffs simply do not plead facts showing that hearing loss
from iPod use is actual or imminent, as required. Buckland,
155 Cal. App. 4th at 814. To the contrary, the plaintiffs’ third
amended complaint reveals the conjectural and hypothetical
nature of the alleged injury as the plaintiffs merely assert that
some iPods have the “capability” of producing unsafe levels
of sound and that consumers “may” listen to their iPods at
unsafe levels combined with an “ability” to listen for long
periods of time.
3. The Alleged Economic Harm Does Not Constitute An
Injury In Fact
The plaintiffs claim that the iPod’s inherent risk of hearing
loss has reduced the value of their iPods and deprived them
of the full benefit of their bargain because they cannot “safe-
ly” listen to music. The plaintiffs do not contend in this appeal
that such alleged economic harm satisfies the injury in fact
requirement. Instead, the plaintiffs contend this alleged loss
satisfies the second part of the UCL’s standing test—that they
lost money or property as a result of Apple’s unfair acts. Cal.
Bus. & Prof. Code § 17204.
[7] The plaintiffs’ alleged economic harm centers on their
claim that the iPod has a defect (an inherent risk of hearing
loss), which caused their iPods to be worth less than what
they paid for them. But the plaintiffs have failed to allege a
cognizable defect under any of their asserted claims. Further,
the alleged loss in value does not constitute a distinct and pal-
pable injury that is actual or imminent because it rests on a
BIRDSONG v. APPLE, INC. 16879
hypothetical risk of hearing loss to other consumers who may
or may not choose to use their iPods in a risky manner.
[8] The plaintiffs’ benefit of the bargain theory fares no
better. They have not alleged that they were deprived of an
agreed-upon benefit in purchasing their iPods. The plaintiffs
do not allege that Apple made any representations that iPod
users could safely listen to music at high volumes for
extended periods of time. In fact, the plaintiffs admit that
Apple provided a warning against listening to music at loud
volumes. The plaintiffs’ alleged injury in fact is premised on
the loss of a “safety” benefit that was not part of the bargain
to begin with. See Animal Legal Defense Fund v. Mendes, 160
Cal. App. 4th 136, 146-47 (Cal. Ct. App. 2008) (rejecting
plaintiffs’ benefit of the bargain theory because the plaintiffs
“d[id] not allege any false or misleading representations that
could be said to have become part of the purchase and sale
agreement”). Cf. Lozano v. AT & T Wireless Servs., Inc., 504
F.3d 718, 734 (9th Cir. 2007) (holding that the plaintiff estab-
lished an injury in fact where he did not receive the full num-
ber of agreed-upon minutes he purchased in a wireless
agreement); Daghlian v. DeVry Univ., Inc., 461 F. Supp. 2d
1121, 1156 (C.D. Cal. 2006).
V
Conclusion
[9] The district court did not err in dismissing the plaintiffs’
third amended complaint. The plaintiffs failed to plead suffi-
ciently a claim for breach of implied warranty of merchanta-
bility and they lacked standing to assert a claim under the
UCL.
AFFIRMED.