CANADA

PROVINCE OF QUEBEC Class Actions Chamber

DISTRICT OF MONTREAL SUPERIOR COURT
No : 500-06-000973-194

HONG XIN JIMMY MEI

Applicant

c.

APPLE INC., legal person having its head

office at 1 Apple Park Way, Cupertino,
California, 95014, United States of America;

and

APPLE CANADA INC., legal person having

an elected domicile at 2500-1000 de la
Gauchetière West street, Montreal, province
of Québec, H3B 0A2, district of Montréal;

Defendants

APPLICATION TO AUTHORIZE THE BRINGING OF A CLASS ACTION AND TO

APPOINT THE STATUS OF REPRESENTATIVE PLAINTIFF
(Sections 574 and following C.c.p.)

TO ONE OF THE HONORABLE JUSTICES OF THE SUPERIOR COURT, SITTING IN

AND FOR THE DISTRICT OF MONTREAL, YOUR APPLICANT STATES AS
FOLLOWS :

I. INTRODUCTION
1. The Applicant wishes to institute a class action on behalf of the following class of
which he is a member:

All persons in Canada and alternatively, in Quebec, who possess

an Apple product, including an iPhone, Apple Watch, iPad, iPod
and/or a MacBook (hereinafter referred as “Apple Products”)
running iOS 12.1 or later, and who used the FaceTime application,
or any other Class to be determined by the Court.

II. THE PARTIES

2. The Applicant is a 20-year-old student who possesses an iPhone X and a MacBook;

3. For years, the Applicant has been using FaceTime, a video-calling application
designed by the Defendant Apple Inc., on these two products.

4. The Defendant Apple Inc. is an American multinational technology company that

develops and commercializes electronic products, in particular, Apple Products;

5. The Defendant Apple Canada Inc. is a subsidiary of Defendant Apple Inc. in Canada,
as it appears from the extract of the Registraire des entreprises, produced herein as
Exhibit R-1;

III. FACTS GIVING RISE TO AN INDIVIDUAL ACTION BY THE APPLICANT

6. On or around December 25th, 2017, the Applicant purchased an iPhone X, as it

appears from a copy of an invoice from said purchase, produced herein as Exhibit
R-2;

7. As of January 29th, 2019, the Applicant’s iPhone was operating on iOS 12.1.2, as it
appears from a screenshot of his iPhone X, produced herein as Exhibit R-3;

8. The Defendants’ wrongdoings were made public on or around January 28th, 2019,
when 9to5Mac reported the existence of a major bug with the FaceTime application,
turning the phone of the recipient of a FaceTime call into a microphone before they
even picked up the call, as it appears from its article, produced herein as Exhibit R-
4;
9. According to this article, you can call somebody by using the FaceTime application
and listen through their phone’s microphone, and in some cases, even see through
their camera, regardless of whether the person you’re calling picks up, by doing a
simple manipulation consisting of:

A. Starting a FaceTime video call with one of the Apple Products;

B. Swiping up the options panel and adding yourself to the group

(group FaceTime call function);

10. Following this discovery, the Defendants admitted to having identified this security
bug concerning the iOS 12.1 operating system and newer versions of this update,
and that the issue will be addressed in a software update later this week, as it
appears from a Buzzfeed article, produced herein as Exhibit R-5;

11. On the night of January 28th, 2019, around 10:16 PM, the Defendants deactivated
the group FaceTime call function, as it appears from the System Status page from
the Defendants’ website, produced herein as Exhibit R-6;

12. The Defendants were negligent in failing to take reasonable measures to ensure that
the operating systems of their Apple Products be exempt from such serious security
bugs;

13. The Applicant, at no times, consented to an intrusion into his privacy;

14. The Applicant suffered anxiety, inconveniences and a violation of his privacy;

15. Although the Defendants promised to fix the security bug, the Applicant does not
know if he will be newly exposed to this security bug when the function will be
reactivated;

16. The Applicant expects premium quality products exempt from such major bugs when
he buys Apple Products;

17. The damages suffered by the Applicant are a direct and proximate result of the
Defendants’ misconduct;

18. Therefore, the Applicant has a claim for damages against the Defendants;
19. The Applicant is justified in claiming punitive damages, since the Defendants
adopted a lax, careless, passive and ignorant conduct with respect to his rights as
well as to the rights of the Class Members;

20. The Defendants showed blatant disregard to the rights of the Applicant and to the
rights of the Class Members by this allowing this significant security bug;

21. The Defendant Apple Inc. has since long tried to distinguish from other rival
technology companies, such as Google and Amazon, by bragging that they do not
sell their clients’ personal information, as it appears from the massive publicity on
the side of a Las Vegas Hotel during the Consumer Electronics Show, which reads
« What happens on your iPhone, stays on your iPhone », as it appears from a CNBC
article, produced herein as Exhibit R-7;

22. On January 28th, 2019, Mr. Tim Cook, the current CEO of the Defendant Apple Inc.,
emphasized the importance of privacy protections in a tweet, as it appears from his
Twitter page, produced herein as Exhibit R-8;

IV. FACTS GIVING RISE TO AN INDIVIDUAL ACTION BY EACH CLASS MEMBER

23. All Class Members have suffered damages by reason of the Defendants’ unlawful
conduct;

24. The legal and factual backgrounds at issue are common to all Class Members;

25. The misconduct and negligence committed by the Defendants with respect to the
Class Members are the same as those committed with respect to the Applicant,
which are detailed previously;

26. Each Class Member is justified in claiming a compensation for damages suffered as
well as punitive damages following the Defendants’ unlawful conduct;

27. However, the Applicant is not able to evaluate the global damages suffered by all
Class Members, since these essential information and data are in the hands of the
Defendants;

V. THE COMPOSITION OF THE CLASS

28. The composition of the Class makes it difficult or impracticable to apply the rules for
 mandates to take part in judicial proceedings on behalf of others or for consolidation
of proceedings;

29. The Applicant ignores the exact number of Class Members;

30. The names and addresses of all Class Members are not known to the Applicant;

31. Therefore, it is impracticable, if not impossible, for the Applicant to identify and
contact all the Class Members for them to joint them in one action;

32. It would also be impracticable, if not impossible, for the Applicant to obtain mandates
or a power of attorney from each Class Member;

33. Furthermore, it would be impracticable and contrary to the proper administration of

justice as well as to the spirit of the Code of civil procedure that each Class Member
file an individual action against the Defendants;

34. A class action is the most appropriate procedure for all of the Class Members to
effectively pursue their respective rights and have access to justice without
overburdening the court system;

35. It is therefore appropriate to authorize the bringing of a class action on behalf of the
Class Members;

VI. THE APPLICANT IS IN POSITION TO PROPERLY REPRESENT THE CLASS

MEMBERS

36. The Applicant requests that he be appointed the status of representative plaintiff for
the following reasons;

37. He is in position to insure an adequate representation of the Class Members and is

not in a conflict of interest;

38. He is a member of the Class;

39. He owns several Apple Products for many years;

40. He has an excellent knowledge of the case;

41. He fully understands the nature of the action;

42. He is committed to fully collaborating with his attorneys and being available in order
to ensure a positive outcome of this class action for the benefit of all Class Members;

43. He is committed to invest the required time and energy to diligently represent the
Class Members in carrying out this class action, at the authorization stage as well as
on the merits;

44. He will faithfully and loyally represent the interests of the Class Members;

45. Therefore, he is in an excellent position to adequately represent the Class Members

in this class action;

VII. JURISDICTION

46. The Applicant suggests that this class action be exercised before the Superior Court
of the province of Quebec, in the district of Montreal, for the following reasons:

A. The Applicant has his domicile and residence in the judicial district
of Montreal;

B. The Defendant Apple Canada Inc. has its elected domicile in this
judicial district;

C. The attorneys for the Applicant have their offices in this judicial
district;

VIII. QUESTIONS OF FACT OR LAW

47. The claims of the Class Members raise identical, similar or related questions of fact
or law, namely:

A. Did the Defendants fail in its obligations under the Consumer

Protection Act, the Act Respecting the Protection of Personal
Information in the Private Sector, and/or the Charter of Human
Rights and Freedoms?

B. Did the Applicant and the Class Members suffer damages by the
Defendants’ conduct and what is the nature of these damages?
 C. Are the Defendants responsible to pay compensatory damages to
the Applicant and the Class Members for various troubles and
inconveniences?

D. If so, in which amount?

E. Are the Defendants responsible to pay punitive damages to the

Applicant and the Class Members?

F. If so, in which amount?

IX. NATURE OF THE ACTION

48. The action that the Applicant wishes to institute on behalf of the Class Members
against the Defendants is:

An action in damages;

X. CONCLUSIONS SOUGHT

49. The conclusions that the Applicant wishes to introduce are:

A. GRANT the Applicant’s action against the Defendants on behalf

all Class Members;

B. CONDEMN the Defendants to pay each Class Member

compensatory damages, in an amount to be determined, for
troubles and inconveniences, with interest and additional
indemnity according to section 1619 of the Civil code of Quebec,
from the date of service of the present action;

C. CONDEMN the Defendants to pay each Class Member punitive

damages, in an amount to be determined, with interest and
additional indemnity according to section 1619 of the Civil code of
Quebec, from the date of service of the present action;

D. ORDER collective recovery of the above-mentioned sums;

E. ORDER that the claims of individual Class Members be the object

 of collective liquidation if the proof permits and alternatively, by
individual liquidation;

F. RENDER any other order that this Honorable Court shall

determine is fair and reasonable;

G. CONDEMN the Defendants to bear the costs of the present action

at all levels, including court costs, as well as expert and notice
fees;

FOR THESE REASONS, MAY IT PLEASE THE COURT:

GRANT the present application;

AUTHORIZE the bringing of a class action in the form of:

An action in damages;

APPOINT the Applicant the status of representative plaintiff of the persons included
in the Class herein described as:

All persons in Canada and alternatively, in Quebec, who possess

an Apple product, including an iPhone, Apple Watch, iPad, iPod
and/or a MacBook (hereinafter referred as “Apple Products”)
running iOS 12.1 or later, and who used the FaceTime application,
or any other Class to be determined by the Court.

IDENTIFY the principle questions of fact and law to be treated collectively as

following:

A. Did the Defendants fail in its obligations under the Consumer

Protection Act, the Act Respecting the Protection of Personal
Information in the Private Sector, and/or the Charter of Human
Rights and Freedoms?

B. Did the Applicant and the Class Members suffer damages by the
Defendants’ conduct and what is the nature of these damages?

C. Are the Defendants responsible to pay compensatory damages to

the Applicant and the Class Members for various troubles and
inconveniences?
 D. If so, in which amount?

E. Are the Defendants responsible to pay punitive damages to the

Applicant and the Class Members?

F. If so, in which amount?

IDENTIFY the conclusions sought by the class action as being the following:

A. GRANT the Applicant’s action against the Defendants on behalf

all Class Members;

B. CONDEMN the Defendants to pay each Class Member

compensatory damages, in an amount to be determined, for
troubles and inconveniences, with interest and additional
indemnity according to section 1619 of the Civil code of Quebec,
from the date of service of the present action;

C. CONDEMN the Defendants to pay each Class Member punitive

damages, in an amount to be determined, with interest and
additional indemnity according to section 1619 of the Civil code of
Quebec, from the date of service of the present action;

D. ORDER collective recovery of the above-mentioned sums;

E. ORDER that the claims of individual Class Members be the object

of collective liquidation if the proof permits and alternatively, by
individual liquidation;

F. RENDER any other order that this Honorable Court shall

determine is fair and reasonable;

G. CONDEMN the Defendants to bear the costs of the present action

at all levels, including court costs, as well as expert and notice
fees;

DECLARE that all Class Members that have not requested their exclusion, be bound
by any judgment to be rendered on the class action to be instituted in the manner
provided for by the law;
FIX the delay of exclusion at thirty (30) days from the date of the publication of the
notice to the Class Members, date upon which the members that have not exercised
their means of exclusion will be bound by any judgment to be rendered herein;

ORDER the publication of a notice to the members according to the terms and
conditions that this Honorable Court shall determine;

REFER the file to the Chief Justice to fix the district in which the class action to be
brought and the Justice before whom it will be heard;

ORDER the Clerk of this Court, in the event that the class action is to be brought in
another district, to transmit the present record to the Clerk of the District so
designated;

THE WHOLE with costs, including court costs, expert and notice fees.

MONTRÉAL, January 29th, 2019

____________________________
LAMBERT AVOCAT INC.
Me Jimmy Ernst Jr. Laguë Lambert
Me Karine Rodrigue
1111, St-Urbain, suite 204
Montréal (Québec) H2Z 1Y6
lambertavocatinc@gmail.com

Attorneys for the Applicant