The opinion of the court was delivered by: Matthew F. Kennelly, District Judge
MEMORANDUM OPINION AND ORDER
Jose Trujillo has sued Apple Computer, Inc. (Apple) and AT&T Mobility LLC (ATTM) over what he alleges amounts to a hidden, mandatory fee for replacement of the battery in Apple's iPhone. Apple has moved the Court for summary judgment on all of Trujillo's claims against it. For the reasons set forth below, the Court grants Apple's motion.
Trujillo's lawsuit concerns the iPhone's battery. He alleges that a requirement that users send their iPhones in to Apple for battery replacement after about 300 charge cycles--which, if Apple's standard one-year warranty on the device has run, entails a $79 service fee, shipping charges, and a fee for an optional loaner iPhone in the interim--imposes "a de facto annual maintenance and/or service charge" worth nearly one-fifth of the iPhone's purchase price. Am. Compl. ¶ 22. Trujillo alleges that both Apple and ATTM, in their marketing and promotion of the iPhone, hid the particulars of Apple's battery replacement program ("BRP") until after the device was launched for sale to the public, thus misleading consumers about the "true nature of the iPhone and its actual expense." Am. Compl. ¶ 31.
Trujillo originally filed suit in the Circuit Court of Cook County, Illinois in July 2007, asserting claims individually and on behalf of a putative class of similarly situated iPhone buyers. Apple removed the case to this Court on August 31, 2007, invoking the Court's diversity jurisdiction under 28 U.S.C. § 1332(d), as amended by the Class Action Fairness Act of 2005. Trujillo filed an amended complaint on September 6, 2007, asserting a claim under the Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA) and related common law claims for fraudulent concealment, breach of contract, breach of implied warranty, and unjust enrichment. Trujillo also seeks an accounting. In his complaint, Trujillo does not differentiate between Apple and ATTM; each claim is leveled against both defendants.
Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). When determining whether a genuine issue of material fact exists, the Court must view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002).
1. Abandoned Arguments and Claim
Apple correctly notes that Trujillo has dropped two of the three factual bases for his claims against Apple. In his amended complaint, Trujillo alleges that Apple did not disclose the limited durability of the iPhone's battery or that the battery is enclosed within the device and cannot be changed by the user but instead must be returned to Apple for this service. See, e.g., Am. Compl. ¶¶ 17, 30a. In response to Apple's motion, however, Trujillo argues only that Apple hid the terms and costs of the BRP. Thus, although Trujillo has abandoned only one of his legal claims against Apple--his claim for an accounting, which he does not try to support--he now asserts only one factual basis for the remaining claims. Accordingly, his other contentions are forfeited. See Laborers' Int'l Union of N. Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (arguments not raised in opposition brief on summary judgment motion are deemed forfeited); Arendt v. Vetta Sports, Inc., 99 F.3d 231, 237 (7th Cir. 1996) (same).
The Court also notes that even if Trujillo had not forfeited his contention that Apple hid from consumers the iPhone battery's limited life and inaccessibility, the position would be untenable. The exterior of the box in which the customer receives his or her iPhone discloses what Trujillo, up to now, alleged was hidden. Specifically, the "feature label" affixed to the box states that the iPhone "[b]attery has limited recharge cycles and may eventually need to be replaced by Apple service provider. Battery life and charge cycles vary by use and settings. See www.apple.com/batteries." Jensen Decl. ¶ 3, Ex. A. Although the quoted sentences are the ninth and tenth sentences of a footnote that appears in smaller typeface than the feature label's main text--which is primarily dedicated to listing the features of the iPhone--there could be no serious contention that this information was hidden from buyers.
As Trujillo now concedes, iPhone buyers were thus made aware of the limited life of the iPhone battery and the need for an authorized service provider to replace it. As Court will explain, based on these two disclosures, Trujillo cannot prevail on his claim that Apple's alleged concealment of a third piece of information--namely, the costs and other details of Apple's BRP--constituted consumer fraud or common law fraud.
One final introductory point. A careful observer might note that the theory upon which Trujillo attempts to sustain his claims against Apple, namely the nondisclosure of the costs and terms of the BRP, differs somewhat from what appears to be his theory of liability as to ATTM. As indicated in the Court's ruling on ATTM's motion to compel arbitration, just recently issued, Trujillo's theory of liability against ATTM appears to be premised upon the interaction between the need to replace the iPhone battery within less than two years after purchase of the device and ATTM's requirement of a two-year minimum service contract. In his response to Apple's motion for summary judgment, however, Trujillo does not rely upon the ATTM service contract aspect of his contentions. The Court therefore addresses Trujillo's claims against Apple as he has chosen to argue them.
Apple argues that no reasonable jury could find Trujillo satisfies even a single required element of a claim under the ICFA--a deceptive act, intention on Apple's part that Trujillo rely on that deception, damages, or proximate causation, see Gehrett v. Chrysler Corp., 379 Ill. App. 3d 162, 882 N.E.2d 1102, 1114 (2008)--because Apple actually disclosed the very things Trujillo alleges it hid. Among other things, Apple contends that its disclosure of the battery's limited life and the potential need for replacement on the iPhone box, and its disclosure of the shipping and ...