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Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page1 of 26 1 2 3 4 5 6 7 SAMUEL G. LIVERSIDGE, SBN 180578 [email protected] TIMOTHY W. LOOSE, SBN 241037 [email protected] AARON H. BLOOM, SBN 281079 [email protected] GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 Facsimile: 213.229.7520 Attorneys for Defendant, Hewlett-Packard Company 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 VINCENT FERRANTI, Individually and On Behalf of all Others Similarly Situated and the General Public, 13 14 15 16 17 18 Plaintiff, v. HEWLETT-PACKARD COMPANY, et al., Defendant. CASE NO. 13-CV-3847 NOTICE OF MOTION AND MOTION OF HEWLETT-PACKARD COMPANY TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Fed. R. Civ. P. 9(b), 12(b)(6)] Date: Time: Place: Judge: March 5, 2015 9:00 a.m. Courtroom 4, Fifth Floor Honorable Edward J. Davila 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page2 of 26 1 2 3 NOTICE OF MOTION AND MOTION TO THIS COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: Please take notice that on March 5, 2015, at 9:00 a.m., in Courtroom 4 of the above-captioned 4 court, located at 280 South First Street, San Jose, CA 95113, or as soon thereafter as may be heard, 5 Defendant Hewlett-Packard Company (“HP”) will, and hereby does, move this Court for an order 6 under Federal Rules of Civil Procedure 9(b) and 12(b)(6), dismissing all of the claims and causes of 7 action contained in Plaintiffs’ Second Amended Complaint (“SAC”). 8 The motion is based on, inter alia, the fact that most of Plaintiffs’ claims are barred by the 9 statute of limitations. Plaintiffs were each on notice of their claims at the time that they allegedly 10 identified that their respective printers were defective—for Plaintiff Ferranti, that date is March 2009; 11 for Plaintiff Martinho, it is January 2010. Because Plaintiffs waited to file their Complaint until the 12 three-year statute of limitations for the Consumer Legal Remedies Act (“CLRA”) had long passed, 13 Plaintiffs’ CLRA claims are time-barred. The same holds true for Plaintiff Ferranti’s Unfair 14 Competition Law (“UCL”) claim and breach of warranty claims. In addition to being untimely, 15 Plaintiffs’ claims fail because the SAC does not set forth facts demonstrating that HP knowingly 16 concealed any material facts from Plaintiffs in violation of either the UCL or the CLRA. Finally, 17 Plaintiffs’ claims for breach of warranty fail because the SAC admits that both Plaintiffs sought, and 18 received, replacement printers and technical support from HP, in accordance with the terms of the 19 express warranty. 20 HP’s motion is based on this Notice, the attached Memorandum of Points and Authorities, the 21 concurrently filed Declaration of Aaron H. Bloom, all matters of which judicial notice may be taken, 22 the papers and pleadings on file herein, and on such additional papers and arguments as may be 23 presented at or before the hearing of this matter. 24 Dated: October 13, 2014 25 26 27 28 Gibson, Dunn & Crutcher LLP GIBSON, DUNN & CRUTCHER LLP By: Samuel G. Liversidge Attorneys for Defendant, Hewlett-Packard Company HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page3 of 26 TABLE OF CONTENTS 1 Page 2 I. INTRODUCTION .................................................................................................................... 1 3 II. STATEMENT OF ALLEGED FACTS .................................................................................... 2 4 III. LEGAL STANDARD ............................................................................................................... 4 5 IV. PLAINTIFFS’ CLAIMS ARE UNTIMELY ............................................................................ 5 6 A. All Of Ferranti’s Claims Are Time-Barred ................................................................... 6 7 B. Martinho’s CLRA Claim Is Time-Barred ..................................................................... 9 8 V. 9 PLAINTIFFS’ FRAUD-BASED CLAIMS FAIL .................................................................. 10 A. The Fraud-Based Claims Fail Because Plaintiffs Do Not Allege Facts Establishing That HP Had Knowledge Of The Purported Defect At The Time Of Sale......................................................................................................................... 10 B. Plaintiffs Fail To Allege Facts Establishing That HP Had A Duty To Disclose Any Alleged Defects ................................................................................................... 12 C. Ferranti Has Not Participated In A Sales Transaction Which Could Give Rise To A CLRA Or UCL Claim About The Officejet 8500 And 8600 Printers ............... 14 10 11 12 13 14 VI. PLAINTIFFS FAIL TO ALLEGE A BREACH OF WARRANTY ...................................... 15 15 A. Ferranti Cannot State A Breach Of Warranty Claim .................................................. 15 16 B. Plaintiffs Do Not Allege Any Facts Establishing That HP Breached Its Warranty...................................................................................................................... 16 17 18 19 VII. PLAINTIFFS’ ALTERNATIVELY PLEADED ARIZONA AND NEW YORK LAW CLAIMS CANNOT SALVAGE THEIR COMPLAINT FROM DISMISSAL ..................... 18 VIII. CONCLUSION ....................................................................................................................... 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP i HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page4 of 26 1 TABLE OF AUTHORITIES 2 3 4 5 6 7 8 Page(s) Cases Adams v. Johnson, 355 F.3d 1179 (9th Cir. 2004).................................................................................................... 5 Addisu v. Fred Meyer, Inc., 198 F.3d 1130 (9th Cir. 2000).................................................................................................... 7 Alaface v. Nat’l Inv. Co., 181 Ariz. 586 (1994) ................................................................................................................ 18 9 Am. Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291 (1995) .................................................................................................. 16 10 Aryeh v. Canon Business Solutions, Inc., 55 Cal. 4th 1185 (2013) ............................................................................................................. 6 11 12 13 14 15 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................................................... 5 Avedisian v. Mercedes-Benz USA, LLC, No. CV 12-00936, 2013 WL 2285237 (C.D. Cal. May 22, 2013)........................................... 13 Baba v. Hewlett-Packard Co., No. 09-05946, 2010 WL 2486353 (N.D. Cal. June 16, 2010) ..................................... 11, 17, 18 16 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) ................................................................................................................... 4 17 Berenblat v. Apple, Inc., Nos. 08-4969, 09-1649, 2010 WL 1460297 (N.D. Cal. Apr. 9, 2010) .................................... 11 18 19 20 21 22 Boland, Inc. v. Rolf C. Hagen (USA) Corp., 685 F. Supp. 2d 1094 (E.D. Cal. 2010) .................................................................................... 13 Bonyadi v. CitiMortgage Bank, No. CV 12-5239, 2013 WL 877603 (C.D. Cal. March 8, 2013) ............................................... 8 Branch v. Tunnell, 14 F.3d 449 (9th Cir. 1994)...................................................................................................... 15 23 Brothers v. Hewlett-Packard Co. (Brothers I), No. C-06-2254, 2006 WL 3093685 (N.D. Cal. Oct. 31, 2006) ............................................... 10 24 Clemens v. DaimlerChrysler Corp., 534 F.3d 1017 (9th Cir. 2008)................................................................................................ 7, 8 25 26 27 Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824 (2006) ................................................................................ 12, 13, 14, 17 Decker v. Glenfed, Inc. (In re Glenfed, Inc. Sec. Litig.), 42 F.3d 1541 (9th Cir. 1994)...................................................................................................... 5 28 Gibson, Dunn & Crutcher LLP ii HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page5 of 26 1 2 TABLE OF AUTHORITIES (continued) Page(s) 3 4 5 6 7 Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002).................................................................................................. 15 Gould v. M & I Marshall v. Isley Bank, 860 F. Supp. 2d 985 (D. Ariz. 2012)........................................................................................ 19 Gustavson v. Wrigley Sales Co., No. 12-1861, 2013 WL 5201190 (N.D. Cal. Sept. 16, 2013) .................................................. 14 8 Henry v. Rehab Plus Inc., 404 F. Supp. 2d 435 (E.D.N.Y. 2005) ..................................................................................... 19 9 Herremans v. BMW of North America, LLC, No. CV 14-02363, 2014 WL 5017843, (C.D. Cal. Oct. 3, 2014) .................................. 8, 10, 12 10 11 12 13 14 15 16 17 18 19 Hillery v. Georgie Boy Manuf., Inc., 341 F. Supp. 2d 1112 (D. Ariz. 2004)........................................................................................ 7 Hodges. v. Apple, Inc., No. 13-cv-01128, 2013 WL 4393545 (N.D. Cal. Aug. 12, 2013) ........................................... 12 Hoey v. Sony Electronics, Inc., 515 F. Supp. 2d 1099 (N.D. Cal. 2007) ................................................................................... 15 In re Sony Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077 (S.D. Cal. 2010) .................................................................................... 12 Irving v. Lennar Corp., No. CIV S-12-290, 2013 WL 1308712 (E.D. Cal. Apr. 1, 2013) .............................................. 7 Keilholtz v. Superior Fireplace Co., No. C 08-00836, 2009 WL 839076 (N.D. Cal. Mar. 30, 2009) ............................................. 8, 9 20 Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310 (2011) ............................................................................................................. 14 21 Leong v. Square Enix of America Holdings, Inc., No. CV 09-4484, 2010 WL 1641364 (C.D. Cal. Apr. 20, 2010) ............................................... 6 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Long v. Hewlett-Packard Co., No C. 06-02816, 2007 WL 2994812 (N.D. Cal. July 27, 2007), aff’d, 316 F. App’x 585 (9th Cir. 2009) ............................................................................. 13, 15 Long v. Hewlett-Packard Co., No. 06-02816, 2006 WL 4877691 (N.D. Cal. Dec. 21, 2006) ..................................... 10, 11, 12 Mazza v. Honda Motor Co., 666 F.3d 581 (9th Cir. 2012)...................................................................................................... 4 Mills v. Forestex Co., 108 Cal. App. 4th 625 (2003) .............................................................................................. 8, 10 iii HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page6 of 26 1 TABLE OF AUTHORITIES (continued) 2 Page(s) 3 4 5 6 7 Morgan v. Harmonix Music Sys., Inc., No. C08-5211, 2009 WL 2031765 (N.D. Cal. July 7, 2009) ................................................... 13 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001)...................................................................................................... 4 O’Shea v. Epson Am., Inc., No. CV 09-8063, 2011 WL 4352458 (C.D. Cal. Sept. 19, 2011) ...................................... 12, 13 8 Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964 (N.D. Cal. 2008) ....................................................................................... 5 9 Rodarte v. Philip Morris, Inc., No. CV03-0353, 2003 WL 23341208 (C.D. Cal. June 23, 2003)............................................ 16 10 11 12 13 14 Shepard v. Alexian Bros. Hosp., Inc., 33 Cal. App. 3d 606 (1973)...................................................................................................... 15 Statler, D.C. v. Dell, Inc., 775 F. Supp. 2d 474 (E.D.N.Y. 2011) ..................................................................................... 18 Stickrath v. Globalstar, Inc., No. C07-1941, 2008 WL 5384760 (N.D. Cal. Dec. 22, 2008) ................................ 1, 7, 8, 9, 10 15 Sullivan v. Oracle Corp., 51 Cal. 4th 1191 (2011) ............................................................................................................. 4 16 Swartz v. KPMG LLP, 476 F.3d 756 (9th Cir. 2007)...................................................................................................... 5 17 18 19 20 21 Taragan v. Nissan North America, Inc., No. C 09-3660, 2013 WL 3157918 (N.D. Cal. June 20, 2013) ............................................... 17 Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097 (9th Cir. 2003).................................................................................................... 5 Wilson v. Hewlett-Packard Co., 668 F.3d 1136 (9th Cir. 2012).................................................................................. 5, 10, 11, 12 22 Windham at Carmel Mountain Ranch Ass’n v. Superior Court, 109 Cal. App. 4th 1162 (2003) ................................................................................................ 15 23 Woods v. Maytag Co., 2010 WL 4314313 (E.D.N.Y. Nov. 2, 2010) ........................................................................... 19 24 25 Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1134 (C.D. Cal. 2010) ..................................................................................... 9 26 Statutes 27 Ariz. Rev. Stat. Ann. § 47-2725 ............................................................................................................. 6 28 Cal. Bus. & Prof. Code § 17200 ............................................................................................................ 1 Gibson, Dunn & Crutcher LLP iv HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page7 of 26 1 TABLE OF AUTHORITIES (continued) 2 Page(s) 3 4 Cal. Bus. & Prof. Code § 17204 .......................................................................................................... 14 Cal. Bus. & Prof. Code § 17208 ............................................................................................................ 6 5 Cal. Civ. Code § 1750 ............................................................................................................................ 1 6 Cal. Civ. Code § 1770(a) ..................................................................................................................... 14 7 Cal. Civ. Code § 1783 ........................................................................................................................ 6, 9 8 9 10 Cal. Com. Code § 2725 .......................................................................................................................... 6 Rules Fed. R. Civ. P. 9(b) ................................................................................................................................ 5 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP v HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page8 of 26 1 I. INTRODUCTION 2 This Court already has dismissed Plaintiffs’ claims once. (Sep. 16, 2014 Dismissal Order 3 (Dkt. 43) (“Dismissal Order”).) In their Second Amended Complaint (“SAC”), Plaintiffs Vincent 4 Ferranti and Carlos Martinho do not allege any new facts that would warrant a different outcome. 5 Plaintiffs continue to admit that they discovered the alleged defects in the wireless function of their 6 HP Officejet Pro printers well outside of the applicable limitations periods. (SAC ¶¶ 40-41, 55-58.) 7 The only new allegation is that the Court should toll the statute of limitations because Plaintiffs did 8 not fully appreciate the cause of the alleged defects at the time they experienced problems with their 9 printers. But that is not sufficient to avoid the Court’s conclusion that “it is difficult to conceive that 10 [Plaintiffs] had the inability to have made earlier discovery” of their claims (Dismissal Order, at 7), 11 and the law is clear that Plaintiffs cannot stretch the statute of limitations beyond the date they 12 experienced the alleged product issues that they are suing over. Stickrath v. Globalstar, Inc., No. 13 C07-1941, 2008 WL 5384760, at *6-7 (N.D. Cal. Dec. 22, 2008 (holding that the statute of 14 limitations began to run once the plaintiff experienced the defect, regardless of the plaintiff’s 15 knowledge of the defect’s technical cause). 16 Nor have Plaintiffs remedied the other deficiencies the Court identified in its Dismissal Order. 17 Plaintiffs have not added any allegations to establish HP’s pre-sale knowledge of the alleged 18 hardware defect in the wireless transceivers, or HP’s duty to disclose the alleged defect. Instead, 19 Plaintiffs continue to rely on the exact same “consumer complaints posted on HP Support Forums 20 and poor reviews on other websites” that this Court already rejected as insufficient to support 21 Plaintiffs’ fraud-based claims under California’s Consumers Legal Remedies Act (Cal. Civ. Code 22 § 1750 et seq., the “CLRA”) and California’s Unfair Competition Law (Cal. Bus. & Prof. Code 23 § 17200 et seq., the “UCL”) (Dismissal Order, at 9). 24 Likewise, Plaintiffs have not added any facts which could establish that HP violated its one- 25 year limited warranty. To the contrary, in response to the Court’s directive that Ferranti clarify how 26 he “obtained” his HP 8500 Printer, Ferranti now concedes that he received the printer as “a 27 [w]arranty replacement for a different model defective HP printer.” (SAC ¶ 40.) Because a breach of 28 warranty claim may only arise from a sale, this new allegation only further confirms that dismissal is Gibson, Dunn & Crutcher LLP 1 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page9 of 26 1 appropriate. The only other substantive difference between Plaintiffs’ prior breach of warranty 2 allegations that were held lacking is that Plaintiffs now allege that they each, at some unspecified 3 time, asked for a refund. But Plaintiffs still admit that HP did replace Plaintiffs’ printers and that 4 Plaintiffs were able to call and receive free assistance from HP Tech Support, which the Court held 5 “indicates that HP did comply with its warranty.” (Dismissal Order, at 10.) Plaintiffs’ supplemental 6 allegation regarding a request for a refund does not, and cannot, establish that HP breached its 7 warranty, because the warranty allows HP to refund, repair, or replace the product at its election. 8 This Court already has articulated the deficiencies in Plaintiffs’ pleading, but the SAC has not 9 cured those deficiencies for an elementary reason: Plaintiffs cannot allege the facts necessary to state 10 a claim. No further amendment could change that fact, and Plaintiffs’ claims should be dismissed 11 with prejudice. 12 II. 13 STATEMENT OF ALLEGED FACTS1 HP moved to dismiss Plaintiffs’ First Amended Complaint (“FAC”) on May 28, 2014, based 14 on Federal Rules of Civil Procedure 12(b)(6) and 9(b). (Dkt. 39.) The Court granted HP’s motion on 15 September 16, 2014, with leave for Plaintiffs to amend their complaint. (Dismissal Order.) The 16 Court held that the claims failed because they were time-barred, failed to identify any facts 17 establishing that HP violated the terms of its standard limited warranty, and failed to plead facts 18 demonstrating that HP knowingly concealed a problem with the wireless connectivity in the printers 19 at the time of sale. (Id. at 6-11.) 20 Plaintiffs responded to the Court’s order by submitting an amended pleading, but the facts that 21 they offer in the newly operative pleading (the SAC) are essentially unchanged.2 Plaintiff Ferranti 22 continues to allege that on March 25, 2009, he obtained a new HP Officejet Pro 8500 Wireless All-in- 23 One Printer “as a Warranty replacement for a different model defective printer.” (SAC ¶ 40.) Aside 24 from learning in March 2009 that it was “defective,” and that it was a “different model HP printer” 25 26 1 HP does not concede the truth of Plaintiffs’ allegations and reserves the right to contest them at the appropriate time if necessary. 2 Attached to the Declaration of Aaron H. Bloom as Exhibit D is a redlined comparison of Plaintiffs’ FAC and SAC. 2 27 28 Gibson, Dunn & Crutcher LLP HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page10 of 26 1 than the model on which he bases his claims, Ferranti does not allege anything about the printer that 2 he originally purchased. (See id.) 3 After Ferranti received the Officejet 8500 as a warranty replacement for the “different model 4 HP printer,” Ferranti allegedly “noticed that the printer’s wireless function did not work.” (Id. ¶ 41.) 5 Ferranti asserts that he contacted HP (he does not allege when), that HP acknowledged Ferranti’s 6 printer was covered by HP’s limited warranty, but Ferranti claims that HP was not able to fix the 7 wireless issue. (Id.) On September 27, 2009, Ferranti then sought, and obtained, a replacement 8 printer, receiving a second, new Officejet 8500. (Id. ¶ 42.) At some unspecified point after his 9 second printer exchange, Ferranti claims that the machine manifested some issues with its wireless 10 connectivity. Ferranti began contacting HP’s technical support division about this issue beginning in 11 April 2010. (Id. ¶¶ 42, 45.) During at least some of these calls, HP personnel informed Ferranti that 12 the problems could be fixed by utilizing troubleshooting techniques, and provided assistance that 13 restored the wireless connection. (Id. ¶¶ 46, 51.) Ferranti asserts, however, that over time the 14 wireless connection again failed to “maintain communication,” prompting him to call HP for further 15 technical support. Ferranti alleges that on one of these calls, an unidentified HP tech support 16 assistant opined that Plaintiff’s intermittent wireless connection was “caused by a hardware defect, 17 specifically a defect on the radio button’s wireless functionality.” (Id. ¶ 47.) Ferranti now also 18 claims that he requested on multiple occasions (but does not allege when or how) that HP either 19 refund the purchase price of his printer, or replace it with a printer with a wireless feature that 20 functioned properly. (Id. ¶ 48.) 21 Plaintiff Carlos Martinho allegedly purchased an HP Officejet Pro 8500 Wireless All-in-One 22 Printer on December 22, 2009, from a Staples store in Vestal, New York. (Id. ¶ 55.) Martinho 23 asserts that when he set his Officejet 8500 up in his home, the printer did not establish a “useable 24 wireless connection.” (Id.) On various occasions beginning on December 23, 2009, Martinho claims 25 to have contacted HP customer support, who told him that wireless connection problems in the 26 Officejet 8500 were a known issue, and that HP was working on a software patch solution. (Id. ¶ 57.) 27 Martinho allegedly downloaded and installed ten different software patches, none of which resolved 28 his wireless issue. (Id.) On or about December 28, 2009, Martinho received a replacement Officejet Gibson, Dunn & Crutcher LLP 3 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page11 of 26 1 8500. (Id. ¶ 56.) He alleges that on December 29, 2009, he determined that this Officejet 8500 2 “could not establish a useable wireless connection.” (Id.) 3 Martinho does not allege any communication with HP to request repair or assistance with this 4 second Officejet 8500. Instead, on January 19, 2010, Martinho purchased an HP Officejet Pro 8600 5 Wireless All-in-One Printer. (Id. ¶ 58.) After approximately one week, Martinho determined that his 6 Officejet 8600 “could not establish a useable wireless connection.” He alleges that at an unspecified 7 later date, he “attempted to contact HP customer support, but they failed to fix the issue.” (Id.) 8 Martinho now also claims that he requested on multiple occasions (but again does not allege when or 9 how) that HP either refund the purchase price of his printer, or replace it with a printer with a 10 wireless feature that functioned properly. (Id. ¶ 65.) 11 Plaintiffs again claim that HP concealed this alleged wireless defect from them at the time of 12 sale, giving rise to their asserted claims for: (1) violation of California’s Consumer Legal Remedies 13 Act (Cal. Civ. Code § 1750 et seq., “CLRA”); (2) violation of California’s Unfair Competition Law 14 (Cal. Bus. & Prof. Code § 17200 et seq., “UCL”); (3) breach of warranty under the Magnuson-Moss 15 Warranty Act (15 U.S.C. § 2301 et seq.); (4) breach of HP’s express limited warranty; and 16 alternatively (5) by Ferranti for violation of Arizona’s Consumer Fraud Act (Ariz. Rev. Stat. § 44- 17 1551 et seq.); and (6) by Martinho for violation of New York’s General Business Law § 349.3 18 III. 19 LEGAL STANDARD A motion to dismiss made under Federal Rule of Civil Procedure 12(b)(6) “tests the legal 20 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Consequently, a 21 motion to dismiss should be granted when a plaintiff fails to proffer “enough facts to state a claim to 22 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 3 Plaintiffs Ferranti and Martinho are Arizona and Pennsylvania residents, respectively, who continue to improperly attempt to assert claims arising under California law. See Mazza v. Honda Motor Co., 666 F.3d 581, 594 (9th Cir. 2012) (holding that “each class member’s consumer protection claim should be governed by the consumer protection laws of the jurisdiction in which the transaction took place”); Sullivan v. Oracle Corp., 51 Cal. 4th 1191, 1207 (2011) (holding that the presumption against extraterritorial application of California law applies to California consumer protection claims in full force). Nevertheless, inasmuch as Plaintiffs assert their claims under California law, HP demonstrates below why their claims fail under the law they have chosen, while maintaining its objections to Plaintiffs’ invocation of this State’s laws. 4 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page12 of 26 1 Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1138 (9th Cir. 2012) (granting motion to dismiss 2 because complaint “failed to plausibly allege a defect in the Laptops that created a safety hazard or 3 that HP had any knowledge of the alleged defect”). Dismissal may be based “on the lack of a 4 cognizable legal theory,” or on the “absence of sufficient facts alleged under a cognizable legal 5 theory.” Oestreicher v. Alienware Corp., 544 F. Supp. 2d 964, 968 (N.D. Cal. 2008) (citing Balisteri 6 v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988)). While allegations of material fact are 7 assumed to be true, and viewed in the light most favorable to the plaintiff, mere “conclusory 8 allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams 9 v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 10 When a plaintiff alleges a claim sounding in fraud, as is the case here, he must plead the 11 circumstances constituting fraud with particularity. Fed. R. Civ. P. 9(b); see also Vess v. Ciba-Geigy 12 Corp. USA, 317 F.3d 1097, 1103 (9th Cir. 2003) (holding that Rule 9(b) requirement “that the 13 circumstances of the fraud must be stated with particularity” applies to state-law claims); Dismissal 14 Order, at 5 (“Fraud-based claims are subject to heightened pleading requirements under Federal Rule 15 of Civil Procedure 9(b)”). Claims sounding in fraud must allege “an account of the ‘time, place, and 16 specific content of the false representations as well as the identities of the parties to the 17 misrepresentations.’” Swartz v. KPMG LLP, 476 F.3d 756, 764 (9th Cir. 2007) (per curiam); see also 18 Dismissal Order, at 5. “The plaintiff must set forth what is false or misleading about a statement, and 19 why it is false.” Decker v. Glenfed, Inc. (In re Glenfed, Inc. Sec. Litig.), 42 F.3d 1541, 1548 (9th Cir. 20 1994) (en banc), superseded on other grounds as stated in Marksman Partners, L.P. v. Chantal 21 Pharmaceutical Corp., 927 F. Supp. 1297, 1309 (C.D. Cal. 1996). 22 23 IV. PLAINTIFFS’ CLAIMS ARE UNTIMELY In its Dismissal Order, the Court held that Plaintiffs had not alleged facts sufficient to delay 24 accrual of their claims, and so dismissed Plaintiffs’ CLRA claims and Ferranti’s UCL claim as barred 25 by the statute of limitations. (Dismissal Order, at 6-8.) Although Plaintiffs were granted leave to 26 amend, their SAC does not add any new facts that warrant a different conclusion. 27 28 Gibson, Dunn & Crutcher LLP 5 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page13 of 26 1 A. 2 All Of Ferranti’s Claims Are Time-Barred The SAC specifically alleges that Plaintiff Ferranti experienced the alleged defects with his 3 printer well over four years before he initiated suit in August 2013. (SAC ¶¶ 40-41 (alleging that 4 Ferranti concluded that his printer was defective in March 2009).) As all of the claims that Ferranti 5 asserts carry limitations periods of four years or less, the entirety of his case is time-barred. 6 Ferranti’s CLRA claim carried a limitations period of three years and accrued on the “date of 7 the commission of the [allegedly deceptive] method, act, or practice.” Cal. Civ. Code § 1783; see 8 Aryeh v. Canon Business Solutions, Inc., 55 Cal. 4th 1185, 1191 (2013) (“The limitations period, the 9 period in which a plaintiff must bring suit or be barred, runs from the moment a claim accrues.”); 10 Leong v. Square Enix of America Holdings, Inc., No. CV 09-4484, 2010 WL 1641364, at *10 (C.D. 11 Cal. Apr. 20, 2010) (holding that the plaintiff’s CLRA claims based upon “nondisclosure at the point 12 of sale are barred by the CLRA’s three-year statute of limitations”). 13 His other claims each also accrued on the date of sale, but carry a four-year statute of 14 limitations. UCL claims are governed by a four-year limitations period, and accrue once the claim is 15 complete with all of its elements—wrongdoing, harm, and causation. Cal. Bus. & Prof. Code 16 § 17208 (setting a four-year statute of limitations for actions under the UCL); Aryeh, 55 Cal. 4th at 17 1196-97 (holding that UCL claims are governed by the common law accrual rules, meaning that the 18 default rule is last element accrual); see also Dismissal Order, at 7. Ferranti’s breach of express 19 warranty claim is governed by the same four-year limitations period, and accrued when “tender of 20 delivery [was] made.” Cal. Com. Code § 2725.4 The identical statute of limitations also applies to 21 Ferranti’s Magnuson-Moss Warranty Act (“MMWA”) claim. The MMWA contains no express 22 statute of limitations, and thus “court[s] must look to the most analogous state statute to determine 23 what statute of limitations to apply”—here Cal. Com. Code § 2725. Hillery v. Georgie Boy Manuf., 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 4 Plaintiffs do not specify under which state laws they bring their warranty claims, nor does Ferranti allege the state in which he purchased his printer. For purposes of this motion, HP has assumed that Plaintiffs intend to bring their warranty claims under California law, which Plaintiffs utilize for their fraud-based claims. However, if Ferranti’s breach of warranty claim were brought under the state of his residence—Arizona—the result would be identical. Ariz. Rev. Stat. Ann. § 47-2725 (holding that the statute of limitations for a breach of warranty claim is four years). 6 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page14 of 26 1 Inc., 341 F. Supp. 2d 1112, 1114-15 (D. Ariz. 2004); see also Addisu v. Fred Meyer, Inc., 198 F.3d 2 1130, 1140 (9th Cir. 2000). 3 Because Ferranti delayed filing his complaint until August 2013, each of his claims is barred. 4 Ferranti’s alleged facts regarding his date of purchase and discovery, which led the Court to dismiss 5 his CLRA and UCL claims as time-barred, remain unchanged in the SAC. As he did in the FAC, 6 Ferranti again alleges in the SAC that his date of purchase occurred more than 4 years before the date 7 upon which he resolved to bring this lawsuit (SAC ¶¶ 40-41), demonstrating that his claims are 8 several months too late. 9 Moreover, Ferranti continues to allege that by March 2009, he had purchased his undisclosed 10 HP printer, detected a defect in that printer, returned it, received a replacement Officejet 8500, and 11 then discovered the wireless malfunction in the Officejet 8500 shortly thereafter. (SAC ¶¶ 40-41.) 12 Based on his allegations, even if there were some reason to toll the statute of limitations from the date 13 of purchase until Ferranti discovered the alleged defect (and Ferranti offers none), his CLRA claim 14 certainly expired no later than March 2012 (three years after he discovered the alleged defect), and 15 both his UCL and breach of warranty claims expired by March 2013 (four years after he discovered 16 the alleged defect). 17 Ferranti now, however, attempts to justify his delay in filing by alleging one additional fact— 18 that even though he discovered the defect in March 2009, he did not realize that the defect was a 19 “hardware defect” until some later (unspecified) date. (SAC ¶ 50.) Although Ferranti admits he 20 experienced the defect outside the limitations period, in his view the statute of limitations should be 21 tolled until the moment that he had a more fulsome understanding of its technical cause. But whether 22 or not Ferranti knew the mechanism of the defect is completely irrelevant to the accrual of his claims. 23 Under California law5, the statute of limitations can only be tolled until the plaintiff “has reason at 24 least to suspect the factual basis for [the claim’s] elements.” Irving v. Lennar Corp., No. CIV S-12- 25 290, 2013 WL 1308712, at *13 (E.D. Cal. Apr. 1, 2013) (quoting Fox v. Ethicon Endo–Surgery, Inc., 26 27 28 Gibson, Dunn & Crutcher LLP 5 See, e.g., Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1024-25 (9th Cir. 2008) (applying California law to the plaintiff’s California consumer law claim); Stickrath, 2008 WL 5384760 (applying California law to the plaintiff’s CLRA claim). 7 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page15 of 26 1 35 Cal. 4th 797, 807 (2005)); see also Keilholtz v. Superior Fireplace Co., No. C 08-00836, 2009 WL 2 839076, at *6 (N.D. Cal. Mar. 30, 2009); Mills v. Forestex Co., 108 Cal. App. 4th 625, 642-43 3 (2003). When Ferranti experienced the alleged defect, he certainly had reason to suspect the factual 4 basis for his claim. Unsurprisingly, courts considering similar scenarios have agreed, holding that the 5 statute of limitations starts running at least at the moment when the party experiences the alleged 6 malfunction (if not sooner). See, e.g., Stickrath, 2008 WL 5384760, at *6-7; Forestex, 108 Cal. App. 7 4th at 648-50 (holding in a breach of warranty case that the manifestation of the defect was sufficient 8 for the statute of limitations to begin to run); Herremans v. BMW of North America, LLC, No. CV 14- 9 02363, 2014 WL 5017843, at *4-5 (C.D. Cal. Oct. 3, 2014) (dismissing the plaintiff’s CLRA claim 10 because it was filed more than three years after she discovered the purported defect). 11 In Stickrath, the plaintiff immediately experienced problems with his mobile phone after 12 purchasing it, but waited until after the limitations period to bring his CLRA claim. Id. at *5-6. The 13 plaintiff argued that his claim was not time-barred because he did not learn about the details of why 14 his phone malfunctioned, nor did he learn about the facts purportedly constituting the manufacturer’s 15 fraud, until sometime after he experienced problems with the product. Id. The court rejected this 16 argument and dismissed the claims as being untimely filed. The plaintiff “was immediately on notice 17 of his phone’s poor functioning upon purchase . . . [and] as a result, that it was defective was not 18 difficult for Plaintiff to detect,” such that the statute of limitations started to run. Id. at *6; see also 19 Forestex, 108 Cal. App. 4th at 648-50; Clemens, 534 F.3d at 1024-25 (holding that the plaintiff’s 20 fraud claim was time-barred where the plaintiff was on notice of the defect and later requested 21 repairs); Bonyadi v. CitiMortgage Bank, No. CV 12-5239, 2013 WL 877603, at *6 (C.D. Cal. Mar. 8, 22 2013) (dismissing fraud-based UCL claim because plaintiff failed to initiate action within four years 23 of receipt of the product). 24 As in Stickrath, Ferranti alleges that he experienced the purported defect shortly after 25 obtaining the printer. The statute of limitations therefore runs at least from that moment in time, 26 which Ferranti alleges is March 2009.6 Moreover, Ferranti purportedly experienced the alleged 27 6 28 Gibson, Dunn & Crutcher LLP Given the proximity between the date that Ferranti received the printer and the date that he alleges experiencing the issue, the cases state that the limitations period should begin running 8 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page16 of 26 1 wireless malfunction on multiple occasions, and the SAC points to other alleged consumer comments 2 dating back to April 2009, demonstrating that there is no reason why Ferranti could not have been 3 placed on notice of the basis of his claims at that time. Based on these allegations, and the well- 4 established law, the SAC provides no new allegations that would warrant the Court’s departure from 5 its earlier conclusion that Ferranti has failed to allege facts that would justify his untimely filing. 6 (Dismissal Order, at 7 (“given the allegations that consumer complaints were posted on HP Support 7 Forums as early as April 2009 and continued throughout the years, it is difficult to conceive that 8 [Plaintiffs] had the inability to have made earlier discovery despite reasonable diligence so as to 9 justify the use of the discovery rule”).)7 Because Ferranti failed to file any of his claims during the 10 limitations period, each of them should be dismissed with prejudice. 11 B. 12 Martinho’s CLRA Claim Is Time-Barred Martinho’s CLRA claim was filed outside of the CLRA’s three-year limitations period, and it 13 also is barred. Cal. Civ. Code § 1783.8 As with Ferranti, the facts that led the Court to dismiss 14 Martinho’s CLRA claim remain unchanged. (Dismissal Order, at 6-7.) Martinho continues to allege 15 that he was aware of all the alleged issues with his Officejet 8500 and 8600 printers no later than 16 January 2010. (SAC ¶¶ 55-58.) His CLRA claims therefore expired no later than January 2013, 17 many months before he filed his complaint. Martinho adds the one same conclusory allegation as 18 from the date of purchase. See Stickrath, 2008 WL 5384760, at *7; Keilholtz, 2009 WL 839076, at *6-7. But Ferranti’s claims were filed so far beyond the applicable limitations periods that they are untimely no matter which date is used—the date of purchase or the date on which the malfunction was experienced. Accordingly, HP’s motion focuses on the later date (the date upon which the malfunction was experienced) to demonstrate that Plaintiffs cannot cure this defect through further amendment. 19 20 21 22 7 Despite clear instructions from the Court’s Dismissal Order that invocation of the discovery rule requires that Plaintiffs’ “specifically plead facts which show [] the time and manner of discovery” of the defect, Plaintiffs also again fail to allege any facts which demonstrate the time and method of discovery. (Dismissal Order, at 7.) See also Yumul v. Smart Balance, Inc., 733 F. Supp. 2d 1134, 1141 (C.D. Cal. 2010). 8 Because Martinho alleges that he purchased his printers and discovered the purported defect within four years of the date he filed his complaint, HP does not currently challenge his UCL or breach of warranty claims on statute of limitations grounds, as both of those claims carry fouryear limitations periods. However, HP contends that these claims should be dismissed with prejudice for the independent reasons set forth in § V.A-B, infra. Accordingly, HP does not concede the truth of Martinho’s allegations and preserves its right to contest them at the appropriate time if necessary. 9 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page17 of 26 1 Ferranti—that he did not discover that the defect was a “hardware defect” until a later (unspecified) 2 date, SAC ¶ 64, but as argued above, that does not excuse his delay. The statute of limitations began 3 to run when Martinho experienced the malfunction of his printers’ wireless function, regardless of 4 when he may claim to have learned the precise technical cause of the defect. Stickrath, 2008 WL 5 5384760, at *5-7; Forestex, 108 Cal. App. 4th at 648-50; Herremans, 2014 WL 5017843, at *4-5. 6 His conscious delay in filing requires the dismissal of his CLRA claim with prejudice. 7 V. 8 9 PLAINTIFFS’ FRAUD-BASED CLAIMS FAIL Even had Plaintiffs’ filing been timely, dismissal still would be required. In its Dismissal Order, the Court held that Plaintiffs had not alleged particular facts to support HP’s knowledge of the 10 alleged problem at the time of purchase, or that HP had duty to disclose the alleged defect, which 11 doomed both the CLRA and the UCL claims. (Dismissal Order, at 9.) Again, Plaintiffs have not 12 added any new allegations to respond to the Court’s Dismissal Order. 13 A. The Fraud-Based Claims Fail Because Plaintiffs Do Not Allege Facts Establishing That 14 HP Had Knowledge Of The Purported Defect At The Time Of Sale 15 The case law is clear—to state an omission-based claim under the CLRA or UCL, Plaintiffs 16 must sufficiently allege facts showing that HP had pre-sale knowledge of the alleged defect. See, 17 e.g., Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1145 (holding that “plaintiffs must sufficiently 18 allege that a defendant was aware of a defect at the time of sale to survive a motion to dismiss”); 19 Brothers v. Hewlett-Packard Co., No. C-06-2254, 2006 WL 3093685, at *6 (N.D. Cal. Oct. 31, 2006) 20 (dismissing the plaintiff’s UCL claim because “the complaint fail[ed] to satisfy Rule 9’s requirement 21 for particularity because plaintiff allege[d] no contemporaneous facts that HP knew about the alleged 22 defects when plaintiff (or any particular consumer) purchased the [computer].”); Long v. Hewlett- 23 Packard Co., No. 06-02816, 2006 WL 4877691, at *3 (N.D. Cal. Dec. 21, 2006) (dismissing 24 plaintiffs’ claims “because they d[id] not allege . . . that HP knew about the relevant defects (and 25 made misrepresentations) when Plaintiffs in particular purchased their [computers].”); Herremans, 26 2014 WL 5017843, at *16-18 (dismissing the plaintiff’s CLRA and UCL claims because she did not 27 plead the defendant’s pre-sale knowledge of the defect). 28 Gibson, Dunn & Crutcher LLP 10 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page18 of 26 1 The Court held that Plaintiffs’ prior pleading, the FAC, did not “allege with particularity how 2 HP had exclusive knowledge of material facts not known to Mr. Martinho.” (Dismissal Order, at 9.) 3 The same is true of the SAC. Plaintiffs have not added any facts which could establish HP’s pre-sale 4 knowledge, let alone exclusive knowledge, of the purported defect. In an attempt to establish pre- 5 sale knowledge, the SAC relies on the exact same facts as the FAC—the identical set of consumer- 6 posted comments, and the same generic statement that HP saw wireless printers being “returned 7 and/or exchanged,” all of which the Court already held to be insufficient. (Compare SAC ¶¶ 22-32 8 with Dismissal Order, at 8-9.)9 9 The Court’s previous conclusion that knowledge was not sufficiently pleaded was warranted 10 by the alleged facts and supported by the governing case law. There is no reason to depart from it 11 upon being presented with the same allegations a second time. See Berenblat v. Apple, Inc., Nos. 08- 12 4969, 09-1649, 2010 WL 1460297, at *9 (N.D. Cal. Apr. 9, 2010) (holding that the “complaints 13 posted on Apple’s consumer website [about a memory slot] merely establish the fact that some 14 consumers were complaining,” and could not establish Apple’s knowledge that the memory slot was 15 defective); Baba v. Hewlett-Packard Co., No. 09-05946, 2010 WL 2486353, at *1, *5 (N.D. Cal. 16 June 16, 2010) (dismissing plaintiffs’ CLRA and UCL claims because plaintiffs’ allegations that HP 17 was aware of a defect in the cooling fan in its laptops due to complaints directly from customers and 18 complaints posted on HP’s own website were insufficient to establish knowledge at the time of sale); 19 Long, 2006 WL 4877691, at *1-3 (allegations that “HP learned of the defect through service calls and 20 repair reports” not sufficient to show “that HP knew about the relevant defects (and made 21 misrepresentations) when Plaintiffs in particular purchased their [computers]”). 22 In short, merely referring generically to Internet postings of customer comments and alleging 23 that products may have been returned or exchanged is simply not sufficient to establish that a 24 manufacturer knew of a particular defect at the time of sale and intentionally withheld that knowledge 25 in connection with the sales transaction. See Wilson, 668 F.3d at 1145; Long, 2006 WL 4877691, at 26 27 28 Gibson, Dunn & Crutcher LLP 9 As the Court noted, the publicly available comments in fact undercut any argument regarding HP’s exclusive knowledge, since Plaintiffs could have viewed them at any time. (Dismissal Order, at 9.) 11 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page19 of 26 1 *1-3; Daugherty v. Am. Honda Motor Co., 144 Cal. App. 4th 824, 837 n.6 (2006); Herremans, 2014 2 WL 5017843, at *16-18. Because the SAC offers nothing else, Plaintiffs still fail to allege the 3 essential element of knowledge, requiring that the UCL and CLRA claims be dismissed. In re Sony 4 Grand Wega KDF-E A10/A20 Series Rear Projection HDTV Television Litig., 758 F. Supp. 2d 1077, 5 1095 (S.D. Cal. 2010) (holding that a manufacturer has “no duty to disclose facts of which it was 6 unaware”). 7 B. Plaintiffs Fail To Allege Facts Establishing That HP Had A Duty To Disclose Any 8 Alleged Defects 9 The Court, in addition to finding that Plaintiffs had not alleged facts which established HP’s 10 exclusive knowledge, held that Plaintiffs also had not alleged facts to show that HP had any duty to 11 disclose the alleged defect. (Dismissal Order, at 9.) That deficiency persists in the SAC and provides 12 a separate and independent basis for dismissal of the UCL and CLRA claims. 13 The courts of this state reject a broad duty to disclose under the UCL and the CLRA, and 14 instead hold that a manufacturer only has a duty to disclose alleged defects when the manufacturer 15 has made a misrepresentation, or the alleged defects create a known and “unreasonable risk” to 16 plaintiff’s safety. Daugherty, 144 Cal. App. 4th at 835-36; O’Shea v. Epson Am., Inc., No. CV 09- 17 8063, 2011 WL 4352458, at *1 n.1 (C.D. Cal. Sept. 19, 2011) (holding that manufacturer had no duty 18 to disclose that print yields of ink cartridges were “grossly inefficient” under the CLRA and the 19 UCL). Because the Ninth Circuit has followed Daugherty, and found that “[a] manufacturer’s duty to 20 consumers is limited to its warranty obligations absent either an affirmative misrepresentation or a 21 safety issue,” Plaintiffs must allege facts demonstrating that either of these conditions is satisfied in 22 order to give rise to a duty to disclose. See Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1141 (9th 23 Cir. 2012) (citing Oestreicher v. Alienware Corp., 322 F. App’x 489, 493 (9th Cir. 2009)) (alteration 24 in original); Hodges v. Apple, Inc., No. 13-cv-01128, 2013 WL 4393545, at *3-7 (N.D. Cal. Aug. 12, 25 2013) (dismissing the plaintiff’s CLRA and UCL claims because he did not plead with particularity 26 any omission of a safety-related fact that Apple was obliged to disclose or any omission contrary to a 27 representation Apple made); Avedisian v. Mercedes-Benz USA, LLC, No. CV 12-00936, 2013 WL 28 Gibson, Dunn & Crutcher LLP 12 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page20 of 26 1 2285237, at *1, *5-6 (C.D. Cal. May 22, 2013) (holding that the plaintiff must plead either an 2 affirmative misrepresentation or a safety concern to sustain omission-based UCL and CLRA claims). 3 In their SAC, Plaintiffs still do not allege any facts demonstrating that the connectivity issues 4 are contrary to any representation made by HP or pose any threat to Plaintiffs’ safety. (SAC ¶¶ 40- 5 65, 78-82, 89-93.) The SAC does not identify a single actionable representation by HP, and in 6 particular cannot identify any representation made by HP about the allegedly defective wireless 7 transceiver. (Id.) Nor does the SAC identify any basis to conclude that an intermittent wireless 8 connection could possibly create a safety concern (and it is difficult to even conjecture a scenario in 9 which Plaintiffs’ safety could be implicated). Because Plaintiffs predicate their claims on the notion 10 that HP failed to disclose the alleged problem during the sale transaction, but have not pleaded facts 11 that would give rise to a duty to disclose under the UCL or the CLRA, their claims necessarily fail. 12 See, e.g., O’Shea, 2011 WL 4352458, at *1 n.1 (holding that UCL and CLRA failed for common 13 reason that defendant was not obliged to disclose alleged inefficiencies in printing process); Long v. 14 Hewlett-Packard Co., No. C 06-02816, 2007 WL 2994812, at *8 (holding that “HP’s alleged failure 15 to disclose the . . . defect is not actionable under the CLRA or the UCL” because plaintiffs failed to 16 allege facts creating a duty to disclose), aff’d, 316 Fed. App’x 585 (9th Cir. 2009); Daugherty, 144 17 Cal. App. 4th at 835, 839-40 (affirming dismissal of UCL and CLRA claims where alleged facts did 18 not create a duty to disclose).10 19 20 21 10 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Plaintiffs’ failure to allege facts creating a duty to disclose is fatal to their theory that all three prongs of the UCL have been violated. Plaintiffs do not state a viable claim under the “unlawful” prong because they fail to allege facts showing that HP committed any of the alleged statutory violations. See Daugherty, 144 Cal. App. 4th at 837 & n.7. Additionally, the mere alleged breach of warranty—a contract—is not “unlawful” for purposes of the UCL. See Boland, Inc. v. Rolf C. Hagen (USA) Corp., 685 F. Supp. 2d 1094, 1110 (E.D. Cal. 2010) (“A breach of contract … is not in itself an unlawful act for purposes of the UCL.”). The alleged conduct also fails under the “fraudulent” prong of the UCL because consumers are “‘not likely to be deceived’ by the omission of a fact that was not required to be disclosed in the first place.” Morgan v. Harmonix Music Sys., Inc., No. C08-5211, 2009 WL 2031765, at *5 (N.D. Cal. July 30, 2009); Daugherty, 144 Cal. App. 4th at 838. Finally, Plaintiffs’ allegations also do not amount to a violation of the “unfair” prong because the nondisclosure of a fact that a defendant was not bound to disclose does not result in a “substantial injury.” See Daugherty, 144 Cal. App. 4th at 839; Morgan, 2009 WL 2031765, at *5. 13 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page21 of 26 1 C. Ferranti Has Not Participated In A Sales Transaction Which Could Give Rise To A 2 CLRA Or UCL Claim About The Officejet 8500 And 8600 Printers 3 Ferranti’s CLRA and UCL claims also falter because he has failed to allege even the most 4 basic facts that are necessary to support them—namely that there was a sales transaction concerning 5 the Officejet 8500 or 8600 printer, that Ferranti lost money as a result of that sales transaction, and 6 that there was a particular promise that attached to the sale. (SAC ¶ 40). Ferranti previously offered 7 vague assertions about how he came into possession of the Officejet 8500, but after being directed by 8 the Court to be more specific (Dismissal Order, at 8 n.1), Ferranti now concedes that he did not 9 purchase the printer that he bases his claims upon. (SAC ¶¶ 40-41.) Instead, he admits that he 10 purchased some other printer, and ended up receiving the Officejet 8500 as a free replacement 11 because the printer he purchased was allegedly defective. 12 Receiving a replacement product does not provide Plaintiff with statutory standing to bring a 13 CLRA claim regarding purported problems in the replacement product because the CLRA applies 14 only to “acts or practices undertaken . . . in a transaction intended to result or which results in the 15 sale or lease of goods or services . . . .” (Cal. Civ. Code § 1770(a)) (emphasis added); see also 16 Daugherty, 144 Cal. App. 4th at 837 n.6 (representations were irrelevant for CLRA purposes because 17 they were not made at the time of sale). And a plaintiff seeking to assert a UCL claim must similarly 18 allege that she “lost money or property as a result of” the defendant’s alleged conduct. Cal. Bus. & 19 Prof. Code § 17204; see also Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 326-27 (2011). None of 20 these could have taken place with respect to Mr. Ferranti’s Officejet 8500, because he did not 21 purchase the Officejet 8500, and thus could not have possibly (or plausibly) lost money as a result of 22 any omission about the Officejet 8500. 23 Whatever Ferranti’s experience with the free replacement Officejet 8500 may have been, this 24 experience cannot give life to claims that are based on his purchase of another product, in a 25 transaction about which Plaintiff alleges little. See Gustavson v. Wrigley Sales Co., 961 F. Supp. 2d 26 1100, 1132-33 (N.D. Cal. 2013) (granting motion to dismiss where allegations regarding products 27 and defendant’s alleged conduct were “wholly generic and conclusory”). Ferranti must base his 28 consumer protection claims on the product that he spent money on, which he does not do. Gibson, Dunn & Crutcher LLP 14 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page22 of 26 1 VI. PLAINTIFFS FAIL TO ALLEGE A BREACH OF WARRANTY 2 Plaintiffs continue to assert that HP breached the conditions of HP’s “Limited Warranty,” but 3 still do not provide a copy of the “Limited Warranty” or otherwise identify the particular terms of the 4 warranty agreement that they allege has been violated. HP again assumes for purposes of argument 5 that Plaintiffs intend to refer to HP’s one-year limited express warranty for its Officejet 8500 and 6 8600 printers (the “One-Year Limited Warranty”), which HP attaches as Exhibits A and B to the 7 Declaration of Aaron H. Bloom filed in support of this motion to dismiss.11 8 A. 9 Ferranti Cannot State A Breach Of Warranty Claim Ferranti’s concession that his Officejet 8500 printers were not acquired through a sales 10 transaction, and instead were obtained as replacements for a “different model defective HP Printer” 11 (SAC ¶ 40), require that his warranty claim be dismissed. Much as is the case for Ferranti’s UCL and 12 CLRA claims (§ V.C, supra), the law does not permit a warranty claim based on a contractual 13 document received outside of a sale. That is because a warranty “is a contractual term concerning 14 some aspect of the sale,” Windham at Carmel Mountain Ranch Ass’n v. Superior Court, 109 Cal. 15 App. 4th 1162, 1168 (2003), with the sale “an essential element to impose liability under warranties.” 16 Shepard v. Alexian Bros. Hosp., Inc., 33 Cal. App. 3d 606, 614 (1973) (rejecting a breach of warranty 17 claim where the alleged warranty did not arise from a sale). Moreover, the particular warranty that 18 Plaintiff apparently attempts to invoke confirms that it only takes effect with the purchase of a 19 product, and not with the receipt of a replacement. Bloom Decl., Ex. A at 3 (the “duration [of the 20 warranty] begins on the date of purchase by the customer”) (emphasis added); Ex. B at 3 (same). 21 22 11 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP Courts routinely consider express warranty statements at the motion to dismiss stage, as the terms of the warranty are necessarily incorporated into the SAC through Plaintiffs’ assertion of a claim for breach. See, e.g., Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994) (holding that documents whose contents are alleged in a complaint but which are not physically attached to the pleading may be considered in ruling on a Rule 12(b)(6) motion), overruled on other grounds in Galbraith v. County of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); see also Long v. HewlettPackard Co., No C. 06-02816, 2007 WL 2994812, at *6 n.3 (N.D. Cal. July 27, 2007) (holding that HP’s limited warranty should be considered in ruling on a motion to dismiss when it was referenced in the pleadings), aff’d, 316 F. App’x 585 (9th Cir. 2009); Hoey v. Sony Electronics, Inc., 515 F. Supp. 2d 1099, 1103 (N.D. Cal. 2007) (holding that incorporation by reference of Sony’s notebook warranty was appropriate because the allegations in plaintiffs’ complaint were based directly on the terms of the express warranty). 15 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page23 of 26 1 Contrary to Ferranti’s assertion (SAC ¶ 44), he thus did not, and could not, receive HP’s One- 2 Year Limited Warranty in connection with his receipt of a replacement printer. Because Plaintiff 3 does not predicate this lawsuit on alleged problems or issues that he had with the printer that he 4 actually purchased, or the warranty that may have applied to that product, he fails to state a breach of 5 warranty claim. Shepard, 33 Cal. App. 4th at 614-15 (affirming dismissal without leave to amend 6 when the breach of warranty claim was not connected to a sale). 7 B. 8 9 10 11 Plaintiffs Do Not Allege Any Facts Establishing That HP Breached Its Warranty The Court dismissed Plaintiffs’ breach of warranty claims because Plaintiffs’ allegations “indicate[d] that HP did comply with its warranty.” (Dismissal Order, at 11.) Plaintiffs’ SAC confirms what was indicated by the FAC—HP complied with its warranty obligations. As with any contract dispute, the terms of the warranty itself determine whether a plaintiff has 12 stated a valid claim. Rodarte v. Philip Morris, Inc., No. CV03-0353, 2003 WL 23341208, at *5 13 (C.D. Cal. June 23, 2003); Am. Suzuki Motor Corp. v. Superior Court, 37 Cal. App. 4th 1291, 1295 14 (1995). HP’s One-Year Limited Warranty did not promise that the use of the Officejet 8500 or 8600 15 printers would be uninterrupted or error-free; instead, it was a “repair and replace warranty.” Bloom 16 Decl., Ex. A at 3, Ex. B at 3; see also Long, 2007 WL 2994812, at *4 (“HP does not warrant that its 17 products will operate uninterruptedly or free of errors—simply that HP will repair or replace any 18 product” that manifests issues covered by the warranty, during the limited warranty period). The 19 warranty plan was applicable during the one-year period beginning “on the date of purchase by the 20 customer.” Bloom Decl., Ex. A at 3, Ex. B at 3. During this one-year period, if the customer notified 21 HP of a defect in the printer and returned the defective printer to HP, HP would either repair or 22 replace the printer, at its election. Id. If the customer returned the defective printer to HP, and HP 23 was aware that it was unable to repair or replace it, HP could refund the purchase price. Id. 24 To have breached the terms of its limited warranty, therefore, HP must have (1) received the 25 defective printer and notice of the defect within the warranty period, yet refused to repair or replace 26 the printer; or, (2) received the defective printer and knew that it was unable to repair or replace the 27 printer, yet refused to refund the purchase price. Id. 28 Gibson, Dunn & Crutcher LLP 16 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page24 of 26 1 Plaintiffs do not allege that either of these events occurred. The only substantive difference 2 between the breach of warranty allegations that were held lacking in the FAC and the newly added 3 allegations of the SAC is that Plaintiffs now allege that they each, at some unspecified time, asked for 4 a refund or a replacement printer with a wireless feature that functioned properly. (SAC ¶¶ 48, 65.) 5 But these supplemental allegations do not establish a breach of HP’s One-Year Limited Warranty. 6 To begin, Plaintiffs admit that they both received technical support from HP, and also obtained 7 replacement printers. (SAC ¶¶ 40-46, 56-59.) While they claim that they “asked” for a refund when 8 they were not satisfied with their replacement printers, Plaintiffs do not allege that they ever 9 complied with the warranty’s terms and sent the replacement Officejet 8500 or 8600 printers back to 10 HP and demanded a refund during the limited warranty period. (SAC ¶¶ 40-46, 55-60.) Nor are 11 there any facts to suggest that HP was asked to and refused to issue a refund for their printers during 12 the limited warranty period, or that HP was sent an allegedly defective printer during the limited 13 warranty period and was unable to repair or replace it. (Id.) Bloom Decl., Ex. A at 3, Ex. B at 3. 14 Indeed, Plaintiffs still do not allege that they ever took the basic step of informing HP that the steps 15 HP took (providing technical support and replacement printers) were not effective to resolve 16 Plaintiffs’ alleged issues. Baba v. Hewlett-Packard Co., No. C 09-05946, 2010 WL 2486353, at *8 17 (N.D. Cal. June 16, 2010) (dismissing the plaintiff’s breach of express warranty claim because he did 18 not notify HP that its repair was unsuccessful). 19 As such, neither Ferranti nor Martinho allege any facts showing that they followed the 20 warranty process or that HP violated its obligations under the warranty.12 To the contrary, Plaintiffs 21 continue to admit that when they called HP for service, HP provided it. And while Plaintiffs claim 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 12 The same conclusions hold true for Plaintiffs’ Magnuson-Moss Warranty Act claims, which are merely derivative and duplicative of their breach of warranty claims. The MMWA simply provides a federal mechanism by which a consumer may seek to enforce the terms of an express warranty, but it does not create any additional law or obligation beyond those existing in state law. Daugherty, 144 Cal. App. 4th at 832-33. Accordingly, Plaintiffs’ failure to establish a breach of warranty claim under state law necessarily requires the dismissal of their MMWA claims. Daugherty, 144 Cal. App. 4th at 832-33 (“[T]he trial court correctly concluded that failure to state a warranty claim under state law necessarily constituted a failure to state a claim under Magnuson-Moss”); Taragan v. Nissan North America, Inc., No. C 09-3660, 2013 WL 3157918, at *5 (N.D. Cal. June 20, 2013) (dismissing the plaintiff’s MMWA claim because the state warranty claim was dismissed). 17 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page25 of 26 1 that problems later resurfaced, neither one alleges that he returned the defective printer to HP in order 2 to request a refund. Instead, Plaintiffs apparently became frustrated and just decided to cease contact 3 with HP and sue, rather than follow the warranty process through. Baba, 2010 WL 2486353, at *8. 4 5 VII. PLAINTIFFS’ ALTERNATIVELY PLEADED ARIZONA AND NEW YORK LAW CLAIMS CANNOT SALVAGE THEIR COMPLAINT FROM DISMISSAL 6 In the alternative to their UCL and CLRA claims, Ferranti again brings an alternative claim 7 under the Arizona Consumer Fraud Act, and Martinho again brings an alternative claim under New 8 York General Business Law § 349. Plaintiffs cannot avoid the effect of their delay in bringing suit by 9 pleading claims under Arizona’s and New York’s consumer protection statutes, because those claims 10 are time-barred as well. Ferranti was required to bring any consumer fraud action under Ariz. Rev. 11 Stat. § 44-1522 within one year of the date he “discover[ed] or with reasonable diligence could have 12 discovered the fraud.” Alaface v. Nat’l Inv. Co., 181 Ariz. 586, 591 (1994) (quoting Mister Donut of 13 Am., Inc. v. Harris, 150 Ariz. 321, 323 (1986)). As described above in Section IV, supra, Ferranti 14 alleges that he discovered the alleged fraud around March 2009 when he identified the defect in his 15 Officejet 8500, which was over four years before initiating this lawsuit, and well after the statute of 16 limitations expired. Alaface, 181 Ariz. at 591-92 (holding that a consumer fraud action was barred by 17 the statute of limitations when the plaintiffs knew the representation and the fact that allegedly 18 contradicted the representation over one year before filing their lawsuit). 19 Under New York law, Martinho was required to bring any Section 349 claim within three 20 years of injury, regardless of his discovery of the injury or its specific cause. Statler, D.C. v. Dell, 21 Inc., 775 F. Supp. 2d 474, 484 (E.D.N.Y. 2011) (holding that “accrual is not dependent upon 22 discovery of either an injury or its specific cause . . . [it] occurs when Plaintiff first suffered injury”). 23 Under New York law, Martinho was thus required to bring his claim no later than January 2013, 24 which he failed to do. Id. (holding that a claim based on the defendant’s concealment of a defect in 25 computers purchased by the plaintiff accrued upon the sale of the computers). Because Ferranti and 26 Martinho waited until after the applicable statutes of limitations had run to bring their alternatively 27 pleaded claims under Arizona and New York law, those claims are barred. 28 Gibson, Dunn & Crutcher LLP 18 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45 Filed10/13/14 Page26 of 26 1 Second, in addition to being time-barred, Plaintiffs fail to state a claim under the Arizona 2 Consumer Fraud Act and Section 349. Plaintiffs’ failure to plead any facts demonstrating HP’s duty 3 to disclose and knowledge of the alleged defect at the time of sale (Section V, supra) dooms these 4 claims. Ferranti’s claim under the Arizona Consumer Fraud Act requires a duty to disclose the 5 allegedly concealed fact, which in turn requires knowledge of the defect at the time of sale. See 6 Gould v. M & I Marshall v. Isley Bank, 860 F. Supp. 2d 985, 989-90 (D. Ariz. 2012) (dismissing an 7 omission-based Arizona consumer fraud act claim because there was no duty to disclose unknown 8 fact). Martinho’s New York Section 349 claim requires him to sufficiently plead both that HP made 9 a representation which contradicted the omission, and that HP had knowledge of the wireless 10 transceiver defect at the time of sale. See Henry v. Rehab Plus Inc., 404 F. Supp. 2d 435, 445 11 (E.D.N.Y. 2005) (holding that Section 349 only requires a duty to disclose an omission when it 12 contradicts a representation made by the defendant); Woods v. Maytag Co., No. 10-CV-0559, 2010 13 WL 4314313, at *16 (E.D.N.Y. Nov. 2, 2010) (dismissing the plaintiff’s Section 349 claim where the 14 plaintiff did not sufficiently plead the defendant’s knowledge of the defect). Because Plaintiffs failed 15 to plead any contradictory representation or sufficiently alleged HP’s pre-sale knowledge of the 16 alleged defect, their alternatively pleaded Arizona and New York claims must fail. 17 18 VIII. CONCLUSION Plaintiffs were given leave to amend so that they could respond to the deficiencies that the 19 Court identified, but their amended pleading adds no new meaningful facts, and thus exhibits the 20 same deficiencies that this Court already held warranted dismissal. Because Plaintiffs’ amended 21 allegations do not salvage their claims, and because granting Plaintiffs a further opportunity to amend 22 would be futile, the Court should dismiss the Second Amended Complaint with prejudice. 23 Dated: October 13, 2014 GIBSON, DUNN & CRUTCHER LLP 24 25 By: 26 Samuel G. Liversidge Attorneys for Defendant, Hewlett-Packard Company 27 28 Gibson, Dunn & Crutcher LLP 19 HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page1 of 60 1 2 3 4 5 6 7 8 SAMUEL G. LIVERSIDGE, SBN 180578 [email protected] TIMOTHY W. LOOSE, SBN 241037 [email protected] AARON H. BLOOM, SBN 281079 [email protected] GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, CA 90071-3197 Telephone: 213.229.7000 Facsimile: 213.229.7520 Attorneys for Defendant, Hewlett-Packard Company 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA 11 SAN JOSE DIVISION 12 13 14 VINCENT FERRANTI, Individually and On Behalf of all Others Similarly Situated and the General Public, Plaintiff, 15 16 17 18 19 20 v. HEWLETT-PACKARD COMPANY, CASE NO. 13-CV-3847 DECLARATION OF AARON H. BLOOM IN SUPPORT OF HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT [Fed. R. Civ. P. 9(b), 12(b)(6)] Defendant. Date: Time: Place: Judge: 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP DECLARATION OF AARON H. BLOOM CASE NO. 13-CV-3847 March 5, 2015 9:00 a.m. Court 4, Fifth Floor Honorable Edward J. Davila Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page2 of 60 1 DECLARATION OF AARON H. BLOOM 2 I, Aaron H. Bloom, declare as follows: 3 1. I am an attorney admitted to practice law before all courts of the State of California. I 4 am an associate in the law firm of Gibson, Dunn & Crutcher LLP, and I am one of the attorneys 5 responsible for the representation of Defendant Hewlett-Packard Company (“HP”) in the above- 6 referenced action. I submit this declaration in support of Defendant’s Motion to Dismiss Plaintiffs’ 7 Second Amended Complaint. Unless otherwise stated, the following facts are within my personal 8 knowledge and, if called and sworn as a witness, I could and would testify competently to these facts. 9 2. Attached as Exhibit A is a true and correct copy of an excerpt of the Support and 10 Warranty Section of the User Guide for the HP Officejet Pro 8500 All-in-One Printer. I obtained this 11 Limited Warranty and User Guide by downloading it from HP’s website through the following link: 12 http://h10032.www1.hp.com/ctg/Manual/c01643304.pdf (last visited October 13, 2014) 13 3. Attached as Exhibit B is a true and correct copy of an excerpt of the Technical 14 Information Section of the User Guide for the HP Officejet Pro 8600 All-in-One Printer. I obtained this 15 Limited Warranty and User Guide by downloading it from HP’s website through the following link: 16 http://h10032.www1.hp.com/ctg/Manual/c03026243.pdf (last visited October 13, 2014) 17 4. Attached as Exhibit C is a true and correct copy of an HP Support Forum thread entitled 18 “Officejet 8500 pro Wireless problems,” with the first post dated April 19, 2009. I obtained this HP 19 Support Forum thread from the following link: http://h30434.www3.hp.com/t5/Printer-Networking- 20 and-Wireless/Officejet-8500-pro-Wireless-problems/m-p/57452#M2297 (last visited October 13, 2014) 21 22 23 24 25 5. Attached as Exhibit D is a true and correct copy of a redline comparison of Plaintiffs’ First Amended Complaint and Second Amended Complaint. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed on October 13, 2014, in Los Angeles, California. 26 27 /s/ Aaron H. Bloom 28 1 Gibson, Dunn & Crutcher LLP DECLARATION OF AARON H. BLOOM CASE NO. 13-CV-3847 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page3 of 60 EXHIBIT A Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page4 of 60 OFFICEJET PRO 8500 User Guide Podręcznik użytkownika A909 Exhibit A, Page 1 of 8 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page5 of 60 B Support and warranty The information in Maintain and troubleshoot suggests solutions to common problems. If your device is not operating correctly and those suggestions did not solve your problem, try using one of the following support services to obtain assistance. This section contains the following topics: • Obtain electronic support • Warranty • Ink cartridge warranty information • Obtain HP telephone support • Prepare the device for shipment • Pack the device Obtain electronic support To find support and warranty information, go to the HP Web site at www.hp.com/support. If prompted, choose your country/region, and then click Contact HP for information on calling for technical support. This Web site also offers technical support, drivers, supplies, ordering information and other options such as: • Access online support pages. • Send HP an e-mail message for answers to your questions. • Connect with an HP technician by using online chat. • Check for software updates. You can also obtain support from the Toolbox (Windows) or HP Printer Utility (Mac OS X), which provide easy, step-by-step solutions to common printing problems. For more information, see Use the Toolbox (Windows) or Use the HP Printer Utility (Mac OS X). Support options and availability vary by product, country/region, and language. Support and warranty Exhibit A, Page 2 of 8 247 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page6 of 60 Appendix B Warranty HP product Duration of limited warranty Software Media 90 days Printer 1 year Print or Ink cartridges Until the HP ink is depleted or the “end of warranty” date printed on the cartridge has been reached, whichever occurs first. This warranty does not cover HP ink products that have been refilled, remanufactured, refurbished, misused, or tampered with. Printheads (only applies to products with customer replaceable printheads) 1 year Accessories 1 year unless otherwise stated A. Extent of limited warranty 1. Hewlett-Packard (HP) warrants to the end-user customer that the HP products specified above will be free from defects in materials and workmanship for the duration specified above, which duration begins on the date of purchase by the customer. 2. For software products, HP’s limited warranty applies only to a failure to execute programming instructions. HP does not warrant that the operation of any product will be interrupted or error free. 3. HP's limited warranty covers only those defects that arise as a result of normal use of the product, and does not cover any other problems, including those that arise as a result of: a. Improper maintenance or modification; b. Software, media, parts, or supplies not provided or supported by HP; c. Operation outside the product's specifications; d. Unauthorized modification or misuse. 4. For HP printer products, the use of a non-HP cartridge or a refilled cartridge does not affect either the warranty to the customer or any HP support contract with the customer. However, if printer failure or damage is attributable to the use of a non-HP or refilled cartridge or an expired ink cartridge, HP will charge its standard time and materials charges to service the printer for the particular failure or damage. 5. If HP receives, during the applicable warranty period, notice of a defect in any product which is covered by HP's warranty, HP shall either repair or replace the product, at HP's option. 6. If HP is unable to repair or replace, as applicable, a defective product which is covered by HP's warranty, HP shall, within a reasonable time after being notified of the defect, refund the purchase price for the product. 7. HP shall have no obligation to repair, replace, or refund until the customer returns the defective product to HP. 8. Any replacement product may be either new or like-new, provided that it has functionality at least equal to that of the product being replaced. 9. HP products may contain remanufactured parts, components, or materials equivalent to new in performance. 10. HP's Limited Warranty Statement is valid in any country where the covered HP product is distributed by HP. Contracts for additional warranty services, such as on-site service, may be available from any authorized HP service facility in countries where the product is distributed by HP or by an authorized importer. B. Limitations of warranty TO THE EXTENT ALLOWED BY LOCAL LAW, NEITHER HP NOR ITS THIRD PARTY SUPPLIERS MAKES ANY OTHER WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. C. Limitations of liability 1. To the extent allowed by local law, the remedies provided in this Warranty Statement are the customer's sole and exclusive remedies. 2. TO THE EXTENT ALLOWED BY LOCAL LAW, EXCEPT FOR THE OBLIGATIONS SPECIFICALLY SET FORTH IN THIS WARRANTY STATEMENT, IN NO EVENT SHALL HP OR ITS THIRD PARTY SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. D. Local law 1. This Warranty Statement gives the customer specific legal rights. The customer may also have other rights which vary from state to state in the United States, from province to province in Canada, and from country to country elsewhere in the world. 2. To the extent that this Warranty Statement is inconsistent with local law, this Warranty Statement shall be deemed modified to be consistent with such local law. Under such local law, certain disclaimers and limitations of this Warranty Statement may not apply to the customer. For example, some states in the United States, as well as some governments outside the United States (including provinces in Canada), may: a. Preclude the disclaimers and limitations in this Warranty Statement from limiting the statutory rights of a consumer (e.g., the United Kingdom); b. Otherwise restrict the ability of a manufacturer to enforce such disclaimers or limitations; or c. Grant the customer additional warranty rights, specify the duration of implied warranties which the manufacturer cannot disclaim, or allow limitations on the duration of implied warranties. 3. THE TERMS IN THIS WARRANTY STATEMENT, EXCEPT TO THE EXTENT LAWFULLY PERMITTED, DO NOT EXCLUDE, RESTRICT, OR MODIFY, AND ARE IN ADDITION TO, THE MANDATORY STATUTORY RIGHTS APPLICABLE TO THE SALE OF THE HP PRODUCTS TO SUCH CUSTOMERS. HP Limited Warranty Dear Customer, You will find below the name and address of the HP entity responsible for the performance of the HP Limited Warranty in your country. You may have additional statutory rights against the seller based on your purchase agreement. Those rights are not in any way affected by this HP Limited Warranty. Ireland: Hewlett-Packard Ireland Limited, 63-74 Sir John Rogerson's Quay, Dublin 2 United Kingdom: Hewlett-Packard Ltd, Cain Road, Bracknell, GB-Berks RG12 1HN Malta: Hewlett Packard International Trade BV, Branch 48, Sqaq Nru 2, Triq ix-Xatt, Pieta MSD08, Malta South Africa: Hewlett-Packard South Africa Ltd, 12 Autumn Street, Rivonia, Sandton, 2128, Republic of South Africa 248 Support and warranty Exhibit A, Page 3 of 8 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page7 of 60 Ink cartridge warranty information The HP cartridge warranty is applicable when the product is used in its designated HP printing device. This warranty does not cover HP ink products that have been refilled, remanufactured, refurbished, misused, or tampered with. During the warranty period the product is covered as long as the HP ink is not depleted and the end of warranty date has not been reached. The end of warranty date, in YYYY-MM format, may be found on the product as indicated: Ink cartridge warranty information Exhibit A, Page 4 of 8 249 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page8 of 60 Appendix B Obtain HP telephone support During the warranty period, you may obtain assistance from the HP Customer Care Center. NOTE: HP does not provide telephone support for Linux printing. All support is provided online at the following Web site: https://launchpad.net/hplip. Click the Ask a question button to begin the support process. The HPLIP Web site does not provide suppport for Windows or the Mac OS X. If you are using these operating systems, seewww.hp.com/support. This section contains the following topics: • Before you call • Support process • HP support by phone • Additional warranty options • HP Quick Exchange Service (Japan) • HP Korea customer support Before you call Visit the HP Web site (www.hp.com/support) for the latest troubleshooting information, or product fixes and updates. Software programs from other companies might be included with the HP All-in-One. If you experience problems with any of those programs, you will receive the best technical assistance by calling the experts at that company. NOTE: This information does not apply to customers in Japan. For information on service options in Japan, see HP Quick Exchange Service (Japan). To assist our Customer Care Center representatives to serve you better, prepare the following information if you need to call HP. 1. Print the self-test diagnostic page of the device. For more information, see Understand the self-test report. If the device does not print, get the following information ready: • Device model 2. • Model number and serial number (check the back of the device) Check the operating system that you are using, such as Windows XP. 3. If the device is connected to the network, check the network operating system. 4. Note how the device is connected to your system, such as through USB or network connection. 5. Obtain the version number of the printer software. (To find the version number of the printer driver, open the printer settings or properties dialog box, and click the About tab.) 6. If you have a problem printing from a particular application, note the application and version number. Support process If you have a problem, follow these steps. 1. Check the documentation that came with the device. 2. 250 Visit the HP online support Web site at www.hp.com/support. HP online support is available to all HP customers. It is the fastest source for up-to-date device information and expert assistance and includes the following features: • Fast access to qualified online support specialists • Software and driver updates for the HP all-in-one Support and warranty Exhibit A, Page 5 of 8 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page9 of 60 3. • Valuable troubleshooting information for common problems • Proactive device updates, support alerts, and HP newsgrams that are available when you register the HP all-in-one Call HP support. Support options and availability vary by device, country/region, and language. HP support by phone The phone support numbers and associated costs listed here are those in effect at time of this material publication. For the most current HP list of telephone support numbers and call-cost information, see www.hp.com/support. This section contains the following topics: • Phone support period • Telephone support numbers • Placing a call • After the phone support period Phone support period One year of phone support is available in North America, Asia Pacific, and Latin America (including Mexico). To determine the duration of phone support in Europe, the Middle East, and Africa, go to www.hp.com/support. Standard phone company charges apply. Obtain HP telephone support Exhibit A, Page 6 of 8 251 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page10 of 60 Appendix B Telephone support numbers For the most current list of telephone support numbers, see www.hp.com/support. www.hp.com/support $IULFD(QJOLVKVSHDNLQJ $IULTXHIUDQFRSKRQH  $UJHQWLQD%XHQRV$LUHV $UJHQWLQD $XVWUDOLD $XVWUDOLDRXWRIZDUUDQW\ ˜VWHUUHLFK  %HOJL­ %HOJLTXH %UDVLO6DR3DXOR %UDVLO &DQDGD &HQWUDO$PHULFD 7KH &DULEEHDQ &KLOH Ё೑ Ё೑ &RORPELD%RJRW£ &RORPELD &RVWD5LFD ÎHVN£UHSXEOLND 'DQPDUN (FXDGRU$QGLQDWHO (FXDGRU3DFLILWHO   ‫ﺍﻟﺠﺰﺍﺋﺮ‬      ೼SP ‫ﺍﻟﺒﺤﺮﻳﻦ‬  ೼  ೼     KSLQYHQW ZZZKSFRPVXSSRUW         '..  ℡   ℡    ‫ﻣﺼﺮ‬ ˃˨˨˙ˡ˞˞˭˹˱ˬˢ˫˶˱ˢˮ˦˧˹ ˃˨˨˙ˡ˞ˢ˪˱˹˯˃˨˨˙ˡ˞˯ ˃˨˨˙ˡ˞˞˭˹̱˺˭ˮˬ *XDWHPDOD 佭␃⡍߹㸠ᬓऔ   ೼  ೼  ೼DXVGHPGHXWVFKHQ )HVWQHW]EHL$QUXIHQDXV 0RELOIXQNQHW]HQN¸QQHQ DQGHUH3UHLVHJHOWHQ            ‫ﺍﻟﻌﺮﺍﻕ‬ ‫ﺍﻟﻜﻮﻳﺖ‬ ‫ﻟﺒﻨﺎﻥ‬ ‫ﻗﻄﺮ‬ ‫ﺍﻟﻴﻤﻦ‬ (O6DOYDGRU (VSD³D )UDQFH 'HXWVFKODQG 0DJ\DURUV]£J ,QGLD ,QGLD ,QGRQHVLD      ,UHODQG  ೼ ‫ישראל‬  ,WDOLD  ೼ 252 -DPDLFD 㡴㦻 㡴㦻    ‫ﺍﻷﺭﺩﻥ‬  뼑霢  /X[HPERXUJ)UDQ©DLV  ೼ /X[HPEXUJ'HXWVFK  ೼ 0DOD\VLD  0DXULWLXV   0«[LFR&LXGDGGH0«[LFR  0«[LFR  0DURF  1HGHUODQG  ೼ 1HZ=HDODQG  1LJHULD   1RUJH  12. ‫ُﻋﻤﺎﻥ‬  3DQDP£  3DUDJXD\  3HU¼  3KLOLSSLQHV  3ROVND  3RUWXJDO  ೼ 3XHUWR5LFR  5HS¼EOLFD'RPLQLFDQD  5HXQLRQ  5RP¤QLD  ̷͕͘͘͏̳͕͉͇ͦ͑͘  ೼ ̷͕͘͘͏̸͇͔͙ͦ͑  ̶͙͈͚͌͌͗͗͊ ೼ ‫ﺍﻟﺴﻌﻮﺑﻴﺔ‬  6LQJDSRUH  6ORYHQVNR  6RXWK$IULFD56$  6XRPL  ೼ 6YHULJH  6(. 6ZLW]HUODQG  &+) 㟎☷  ࡷࡎ࡙   ‫ﺗﻮﻧﺲ‬  7ULQLGDG 7REDJR  7¾UNL\HòVWDQEXO$QNDUD  ò]PLU %XUVD ̺͇͔͇͑͗ͭ   ‫ﺍﻹﻣﺎﺭﺍﺕ ﺍﻟﻌﺮﺑﻴﺔ ﺍﻟﻤﺘﺤﺪﺓ‬  8QLWHG.LQJGRP 8QLWHG6WDWHV 8UXJXD\ 9HQH]XHOD&DUDFDV 9HQH]XHOD 9L¬W1DP Support and warranty Exhibit A, Page 7 of 8  e       Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page11 of 60 Placing a call Call HP support while you are in front of the computer and the HP all-in-one. Be prepared to provide the following information: • Model number (located on the label on the front of the device) NOTE: In addition to the model name that appears on the front of the device, this device has a specific model number. You can use this number to help determine which supplies or accessories are available for your product, as well as when obtaining support. The model number is printed on a label located inside the device near the ink cartridges area. • Serial number (located on the back or bottom of the device) • Messages that appear when the situation occurs • Answers to these questions:  Has this situation happened before?  Can you re-create it?  Did you add any new hardware or software to your computer at about the time that this situation began?  Did anything else occur prior to this situation (such as a thunderstorm, HP all-in-one was moved, etc.)? After the phone support period After the phone support period, help is available from HP at an additional cost. Help may also be available at the HP online support Web site: www.hp.com/support. Contact your HP dealer or call the support phone number for your country/region to learn more about support options. Additional warranty options Extended service plans are available for the HP all-in-one at additional costs. Go to www.hp.com/ support, select your country/region and language, then explore the services and warranty area for information about the extended service plans. Obtain HP telephone support Exhibit A, Page 8 of 8 253 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page12 of 60 EXHIBIT B Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page13 of 60 OFFICEJET PRO 8600 User Guide Exhibit B, Page 1 of 4 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page14 of 60 A Technical information This section contains the following topics: • • Warranty information Printer specifications • Regulatory information • • Environmental product stewardship program Third-party licenses Warranty information This section contains the following topics: Hewlett-Packard limited warranty statement • • 158 Ink cartridge warranty information Technical information Exhibit B, Page 2 of 4 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page15 of 60 Hewlett-Packard limited warranty statement HP product Duration of limited warranty Software Media 90 days Printer 1 year Print or Ink cartridges Until the HP ink is depleted or the “end of warranty” date printed on the cartridge has been reached, whichever occurs first. This warranty does not cover HP ink products that have been refilled, remanufactured, refurbished, misused, or tampered with. Printheads (only applies to products with customer replaceable printheads) 1 year Accessories 1 year unless otherwise stated A. Extent of limited warranty 1. Hewlett-Packard (HP) warrants to the end-user customer that the HP products specified above will be free from defects in materials and workmanship for the duration specified above, which duration begins on the date of purchase by the customer. 2. For software products, HP’s limited warranty applies only to a failure to execute programming instructions. HP does not warrant that the operation of any product will be interrupted or error free. 3. HP's limited warranty covers only those defects that arise as a result of normal use of the product, and does not cover any other problems, including those that arise as a result of: a. Improper maintenance or modification; b. Software, media, parts, or supplies not provided or supported by HP; c. Operation outside the product's specifications; d. Unauthorized modification or misuse. 4. For HP printer products, the use of a non-HP cartridge or a refilled cartridge does not affect either the warranty to the customer or any HP support contract with the customer. However, if printer failure or damage is attributable to the use of a non-HP or refilled cartridge or an expired ink cartridge, HP will charge its standard time and materials charges to service the printer for the particular failure or damage. 5. If HP receives, during the applicable warranty period, notice of a defect in any product which is covered by HP's warranty, HP shall either repair or replace the product, at HP's option. 6. If HP is unable to repair or replace, as applicable, a defective product which is covered by HP's warranty, HP shall, within a reasonable time after being notified of the defect, refund the purchase price for the product. 7. HP shall have no obligation to repair, replace, or refund until the customer returns the defective product to HP. 8. Any replacement product may be either new or like-new, provided that it has functionality at least equal to that of the product being replaced. 9. HP products may contain remanufactured parts, components, or materials equivalent to new in performance. 10. HP's Limited Warranty Statement is valid in any country where the covered HP product is distributed by HP. Contracts for additional warranty services, such as on-site service, may be available from any authorized HP service facility in countries where the product is distributed by HP or by an authorized importer. B. Limitations of warranty TO THE EXTENT ALLOWED BY LOCAL LAW, NEITHER HP NOR ITS THIRD PARTY SUPPLIERS MAKES ANY OTHER WARRANTY OR CONDITION OF ANY KIND, WHETHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, AND FITNESS FOR A PARTICULAR PURPOSE. C. Limitations of liability 1. To the extent allowed by local law, the remedies provided in this Warranty Statement are the customer's sole and exclusive remedies. 2. TO THE EXTENT ALLOWED BY LOCAL LAW, EXCEPT FOR THE OBLIGATIONS SPECIFICALLY SET FORTH IN THIS WARRANTY STATEMENT, IN NO EVENT SHALL HP OR ITS THIRD PARTY SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY AND WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. D. Local law 1. This Warranty Statement gives the customer specific legal rights. The customer may also have other rights which vary from state to state in the United States, from province to province in Canada, and from country to country elsewhere in the world. 2. To the extent that this Warranty Statement is inconsistent with local law, this Warranty Statement shall be deemed modified to be consistent with such local law. Under such local law, certain disclaimers and limitations of this Warranty Statement may not apply to the customer. For example, some states in the United States, as well as some governments outside the United States (including provinces in Canada), may: a. Preclude the disclaimers and limitations in this Warranty Statement from limiting the statutory rights of a consumer (e.g., the United Kingdom); b. Otherwise restrict the ability of a manufacturer to enforce such disclaimers or limitations; or c. Grant the customer additional warranty rights, specify the duration of implied warranties which the manufacturer cannot disclaim, or allow limitations on the duration of implied warranties. 3. THE TERMS IN THIS WARRANTY STATEMENT, EXCEPT TO THE EXTENT LAWFULLY PERMITTED, DO NOT EXCLUDE, RESTRICT, OR MODIFY, AND ARE IN ADDITION TO, THE MANDATORY STATUTORY RIGHTS APPLICABLE TO THE SALE OF THE HP PRODUCTS TO SUCH CUSTOMERS. HP Limited Warranty Dear Customer, You will find below the name and address of the HP entity responsible for the performance of the HP Limited Warranty in your country. You may have additional statutory rights against the seller based on your purchase agreement. Those rights are not in any way affected by this HP Limited Warranty. Ireland: Hewlett-Packard Ireland Limited, 63-74 Sir John Rogerson's Quay, Dublin 2 United Kingdom: Hewlett-Packard Ltd, Cain Road, Bracknell, GB-Berks RG12 1HN Malta: Hewlett-Packard International Trade B.V., Malta Branch, 48, Amery Street, Sliema SLM 1701, MALTA South Africa: Hewlett-Packard South Africa Ltd, 12 Autumn Street, Rivonia, Sandton, 2128, Republic of South Africa Warranty information Exhibit B, Page 3 of 4 159 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page16 of 60 Appendix A Ink cartridge warranty information The HP cartridge warranty is applicable when the product is used in its designated HP printer. This warranty does not cover HP ink products that have been refilled, remanufactured, refurbished, misused, or tampered with. During the warranty period the product is covered as long as the HP ink is not depleted and the end of warranty date has not been reached. The end of warranty date, in YYYY-MM format, may be found on the product as indicated: 160 Technical information Exhibit B, Page 4 of 4 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page17 of 60 EXHIBIT C Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page18 of 60 Exhibit C, Page 1 of 5 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page19 of 60 Exhibit C, Page 2 of 5 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page20 of 60 Exhibit C, Page 3 of 5 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page21 of 60 Exhibit C, Page 4 of 5 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page22 of 60 Exhibit C, Page 5 of 5 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page23 of 60 EXHIBIT D Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page24 of 60 1 6 Michael A. Caddell (SBN 249469) [email protected] Cynthia B. Chapman (SBN 164471) cbc@caddellchapman Cory S. Fein (SBN 250758) CADDELL & CHAPMAN 1331 Lamar, Suite 1070 Houston, TX 77010-3027 Telephone: (713) 751-0400 Facsimile: (713) 751-0906 7 Attorneys for Plaintiff Vincent Ferranti and Carlos Martinho 2 3 4 5 8 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 SAN FRANCISCO DIVISION 10 11 12 13 VINCENT FERRANTI, individually and on behalf of all others similarly situated, Plaintiff, 14 15 16 17 18 19 20 v. HEWLETT-PACKARD CO., Defendant. § § § § § § § § § § § § § § § § § § Case No. CV 13-03847 LHK FIRSTSECOND AMENDED CLASS ACTION COMPLAINT (1) Violations of California Consumer Legal Remedies Act (2) Violations of the Unfair Competition Law (3) Breach of Written Warranty Under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 § et seq. (4) Breach of Express Warranty 21 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 1 Exhibit D, Page 1 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page25 of 60 1 FIRSTSECOND AMENDED CLASS ACTION COMPLAINT 2 Plaintiffs Vincent Ferranti and Carlos Martinho file this FirstSecond Amended Class 3 Action Complaint pursuant to Fed. R. Civ. P. 15(a)(1)(B) within 21 days after service of HP’s Rule 4 12(b) motion to dismiss, (Dkt. 13the Court’s Order, (Dkt. 43), against Defendant Hewlett- Packard 5 Company (“HP”) and allege as follows. All allegations are based on Plaintiffs’ personal 6 knowledge as to matters involving them and on information and belief based on, among other 7 things, the investigation of their attorneys, as to all other matters. 8 9 INTRODUCTION 1. Ferranti and Martinho bring this action individually and on behalf of all similarly 10 situated persons (the “Class Members”) who purchased or leased a Hewlett Packard Officejet 11 Pro 8500 and/or 8600 Wireless All-in-One printer (the “HP Wireless Printers”). The HP Wireless 12 Printers have an undisclosed design and/or manufacturing defect that causes the wireless function 13 to cease operating with normal use (the “Defect”). 14 2. Wireless printers are becoming increasingly popular for use in businesses and the 15 home. The majority of these printers use WiFi, also known as the 802.11 set of standards, and 16 communicate with computers via radio signals. Wireless printers are able to work wirelessly 17 (meaning without plugging them into a computer) via WiFi transceivers built into them. Once 18 the wireless printer is set up to communicate wirelessly with a laptop, desktop or tablet computer, 19 compatible devices can send print jobs to the printer. 20 3. This feature is especially useful for offices or households with multiple computers 21 because it allows multiple computers to access the same wireless printer, eliminating the need 22 to buy a dedicated printer for each computer. Additionally, laptops or tablets can be used 23 throughout the range of the wireless signal, and users can print documents without having to 24 plug the laptop or tablet into the printer every time they want to print. 25 4. The HP Wireless Printers at issue in this litigation are defective in that they 26 contain improperly designed and/or manufactured transceivers which are unable to maintain 27 communication with the computers they are linked to, rendering the wireless feature useless. 28 Gibson, Dunn & Crutcher LLP 2 Exhibit D, Page 2 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page26 of 60 1 Because of this Defect in the design and/or manufacture of the HP Wireless Printers’ 2 transceivers, the HP Wireless Printers will cease operating with normal use. 3 5. The HP Wireless Printers all have the same defective transceiver. This common 4 Defect causes the printers to be unable to communicate with the user’s laptop desktop or tablet 5 computer, thus precluding users from being able to print documents wirelessly (i.e., without 6 plugging the printer into their computers). 7 8 9 6. HP designed, manufactured, distributed, marketed, sold and/or leased the HP Wireless Printers to Ferranti, Martinho, and the Class Members. 7. Beginning at least in April 2009, if not before, HP knew or should have knownhad 10 exclusive knowledge that the HP Wireless Printers suffered from the Defect, a material fact not 11 known to Ferranti, Martinho and the Class Members. This fact was material because one of the key 12 essential features of the wireless printers was their ability to work wirelessly. HP nevertheless 13 marketed and sold the HP Wireless Printers as “Wireless All-in-One Printers” and actively 14 concealed the Defect from and failed to disclose the Defect to Ferranti, Martinho, and the Class 15 Members at the time of purchase or lease and thereafter. HP has continued to market and sell the 16 HP Wireless Printers as “Wireless All-in-One Printers” without warning consumers that the 17 wireless function will cease operating with normal use. 18 8. Although the Defect manifests itself during the warranty period and is covered 19 by HP’s warranty, HP has refused to repair the HP Wireless Printers under warranty. Rather 20 than providing a proper repair during the warranty, HP has offered various software patches and 21 “work-arounds” which do not fix the Defect. 22 9. 9. Had Ferranti, Martinho, and the Class Members known about the Defect at the 23 time of sale or lease, Ferranti, Martinho and the Class Members would not have purchased or 24 leased the HP Wireless Printers or would have paid less for them. As a result of their reliance on 25 HP’s omissions regarding the Defect, owners and/or lessees of the HP Wireless Printers have 26 suffered ascertainable loss of money, property, and/or loss in value of their printers. result of their 27 reliance on HP’s omissions regarding the Defect, owners and/or lessees of the HP Wireless Printers 28 have suffered ascertainable loss of money, property, and/or loss in value of their printers. Gibson, Dunn & Crutcher LLP 3 Exhibit D, Page 3 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page27 of 60 1 2 PARTIES 10. Plaintiff Vincent Ferranti is a resident of Maricopa County, Arizona. Ferranti is the 3 former owner of an HP Wireless Printer which he obtained by exchanging it as a Warranty 4 replacement for a different model defective HP Wireless Printer on or about March 25, 2009, and 5 the current owner of an HP Wireless Printer which he obtained by exchanging it for another 6 defective HP Wireless Printer on or about September 27, 2009. Both printers were obtained 7 primarily for personal, family, or household purposes, and were designed, manufactured, 8 imported, distributed, sold, and/or leased by Defendant HP. 9 11. Plaintiff Carlos Martinho is a resident of Hallstead, Susquehanna County, 10 Pennsylvania. Martinho is the former owner of an HP Wireless Printer which he 11 obtainedpurchased new on or about December 22, 2009 and an HP Wireless Printer which he 12 obtained in exchange for his prior defective printer on or about January 19, 2010. Both printers 13 were obtained primarily for personal, family, or household purposes, and were designed, 14 manufactured, imported, distributed, sold, and/or leased by Defendant HP. 15 12. Defendant Hewlett-Packard Company is a California corporation. Upon information 16 and belief, at all relevant times, HP has maintained its principal place of business at 3000 17 Hanover St., Palo Alto, CA 94304-1185. HP’s registered agent for service in California is CT 18 Corporation System, 818 West Seventh Street, Los Angeles, CA 90017. 19 20 JURISDICTION AND VENUE 13. This Court has jurisdiction over this class action under the Class Action Fairness 21 Act, 28 U.S.C. § 1332(d). The aggregated claims of the individual Class Members exceed the sum 22 or value of $5,000,000, exclusive of interests and costs, and this is a class action in which 23 Plaintiff and members of the class, on the one hand, and HP, on the other, are citizens of different 24 states. HP, on the other, are citizens of different states. 25 14. This Court has jurisdiction over HP because HP maintains its principal 26 headquarters in California, is registered to conduct business in California, and has sufficient 27 minimum contacts in California. HP intentionally avails itself of the California consumer market 28 through the promotion, sale, marketing, and distribution of its products to California residents. As Gibson, Dunn & Crutcher LLP 4 Exhibit D, Page 4 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page28 of 60 1 a result, jurisdiction in this court is proper and necessary. Moreover, HP’s wrongful conduct, as 2 described herein, emanates from California and foreseeably affects consumers in California and 3 nationwide. Most, if not all, of the events complained of below occurred in or emanated from 4 HP’s corporate headquarters located in Palo Alto, California. Plaintiffs’ counsel’s Declaration, 5 as required under California Civil Code section 1780(d), is attached as Exhibit 1 to Plaintiffs’ 6 Original Complaint (Dkt. 1-1). 7 14. Venue is proper in this District under 28 U.S.C. § 1391 (a)-(c) because, inter alia, 8 substantial parts of the events or omissions giving rise to the claim occurred in the District and/or a 9 substantial part of property that is the subject of the action is situated in the District. 10 11 FACTUAL ALLEGATIONS 15. HP designs, manufactures, distributes, and sells and/or leases the HP Wireless 12 Printers. On information and belief, HP has sold, directly or indirectly through other retailers, 13 thousands of HP Wireless Printers in California and nationwide. 14 16. The HP Wireless Printers are defective, including but not limited to the Defect in 15 the design and manufacture of the wireless function that causes it to cease operating with 16 normal use. The HP Wireless Printers are designed and/or manufactured in such a way that the 17 wireless function fails during normal use. 18 17. HP’s advertisements and marketing representations fail to mention that, because 19 of the Defect, the HP Wireless Printers’ wireless function will cease operating with normal use 20 during the printer’s useful life. 21 19. Customers have reported the Defect to HP directly through HP’s warranty program 22 and through published product reviews, such as those posted on HP’s support forum, 23 Amazon.com, CNet.com, and similar websites. Thus HP knew or should have known of the 24 Defecthad exclusive knowledge that the HP Wireless Printers suffered from the Defect, a 25 material fact not known to Ferranti, Martinho and the Class Members since at least April 2009, 26 if not before, particularly due to the vast number of consumer-posted comments and complaints 27 regarding wireless connectivity issues on HP’s Support Forum page, as well as the high volume of 28 returned and/or exchanged wireless printers from customers complaining of wireless connectivity Gibson, Dunn & Crutcher LLP 5 Exhibit D, Page 5 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page29 of 60 1 issues. The HP Support Forum page, which is monitored by HP, would have alerted HP of the 2 wireless connectivity issue. HP was clearly aware of the problem, while customers only became 3 aware of the problem if they experienced it first-hand and were informed that the problem was 4 caused by a hardware defect in the transceiver, which could not be fixed without physically 5 replacing or repairing the transceiver. Moreover, when customers complained about the problem, 6 HP’s customer service department took customers through “trouble-shooting” procedures which 7 HP falsely represented could fix the problem. HP knew that the Defect was caused by defective 8 materials within the printer, as described herein, and was a problem that could not be fixed by 9 HP’s customer service representatives taking the customer through troubleshooting procedures. 10 11 This fact was within the exclusive knowledge of HP and was unavailable to the public. 18. These “troubleshooting” procedures, which failed to repair (and were incapable of 12 repairing) the Defect, included uninstalling and reinstalling software, downloading and installing 13 firmware updates or patches, restarting the computer, restarting the wireless router, restarting the 14 printer, downloading and installing HP diagnostic tools to help identify and fix issues, inputting 15 wireless router settings into the LCD panel on the printer, disabling “energy save mode” on 16 printer, and changing the setup of the standard IP address to be “static” rather than dynamic. 17 None of these repaired the defect which consisted of defective transceivers which were unable to 18 maintain communication with the computers the printers were linked to, rendering the wireless 19 feature useless. 20 19. 20. The HP OfficeJet Pro 8500 Wireless was released in or around March 2009, 21 designated as Model CB023A (the standard wireless model) and Model CB025A (the Premier 22 wireless model). The Premier model is essentially the same as the standard model, but includes an 23 additional paper tray and additional inkjet cartridges (neither of which have any impact on the 24 wireless function at issue in this case). 25 20. 21. Almost immediately, HP began receiving complaints regarding the Defect. 26 21. 22. For example, HP Support Forums has a section titled “Officejet 8500 pro 27 Wireless problems” which as of June 27, 2013 has been viewed 20,558 times. 28 Gibson, Dunn & Crutcher LLP 6 Exhibit D, Page 6 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page30 of 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 22. 23. The first post in this category is dated April 19, 2009 (the month after the printer was released) and states as follows: dfword Registered: 04-19-2009 Message 1 of 19 (20,558 Views) Officejet 8500 pro Wireless problems [ Edited ] 04-19-2009 03:03 AM - edited 04-19-2009 03:14 AM This week I bought an HP pro 8500 wireless printer. I’ve never owned a wireless printer before, so I actually read the instructions and before installing the printer software, I ran the wireless wizard on the unit--entered the 10-digit WEP, which was accepted. Then within seconds the printer started to wig out. Cycles between “turn printer off and on”, then after doing so, get “Improper Shutdown”, as if I didn’t use the power button to turn it off. I’m running Windows Vista Premium SP1, and am using a 2wire 1800HG modem/router with my ATT DSL--have a static IP, as my service was installed up in 1999, back when you had to live within five miles of a switching station. The connection is very stable, and as far as I know, only one update was done to the unit (remotely by a ATT tech) when I upgraded to PRO service. Same thing happens when I try to connect via ethernet. When I turn the printer’s radio off and connect via USB, it works fine, albeit wired. The printer’s network diagnostic printout says it can’t locate the SSID. I’m dealing with HP support in India, and they have been OK, have had me try all of the normal stuff (reset, not using power strip, etc), to no avail. Now they are going to access my set remotely, hopefully this morning. Any ideas what may be causing this? Could my router be incompatible? 23. 24. On CNET’s website, as of June 26, 2013, there were 261 user reviews ranging from a high of 5 stars to a low of 1 star. 150 of the 261 reviews, or more than 57%, gave the lowest possible 1-star rating and included comments like: “Love the printer, hate connectivity issues” on December 1, 2012 by Panther66 This puppy just won’t stay connected to the network 24. 25. On HP Support Forums’ website, there are more than 150 posts on the topic of “HP Officejet Pro 8500 Wireless A909g Loses Connectivity.” Below are a sampling of 18 of those messages ranging from October 2009 through March 2011: 25 (1) SLB Message 141 of 159, 03-24-2011 01:33 PM 26 Here we are in 2011, and same problem with the same HP response--turn off sleep mode, firmware solution still not available, sending a power adaptor to see if that works. Can’t believe the years and they still haven’t fixed this. And yes, I loved this printer for the first 2-3 weeks. Then all the trouble started with locking up, never coming out of sleep mode; having to unplug from the back and reboot, 2-3 times 27 28 Gibson, Dunn & Crutcher LLP 7 Exhibit D, Page 7 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page31 of 60 1 2 3 4 5 6 7 8 9 10 11 12 per day just about. This is definitely NUTS! For all the hours TecSup and we have spent over the years, they could have replaced them all cheaper! (2) CoinDoc Message 131 of 159, 01-29-2011 08:04 PM It seems that all the troubleshooting is great but still seems to come back to the same issue. The printer is losing its connectivity! We know that it is happening with multiple systems, both 32 bit and 64 bit. . . . Well, we have now eliminated both the computer and the router because both of them were functioning properly, and were listening for the printer. The problem is definitely in the printer because it is NOT sending a reinitiate connection sequence to the router after it goes to sleep and then wakes up. But the real issue here is: It should not have to! It should always maintain its wireless connection even if the printer goes to sleep. So, that takes us right back to the printer hardware/firmware and a definite design issue that cannot be addressed by pointing their finger at the user or other hardware. BTW, I installed a Brother AIO on the same network about 11 months ago, and it has NEVER had a connection issue! The HP 8500 has had connectivity problems since the day it was installed about 18 months ago. I finally got so frustrated with my 8500 I turned off the wireless and just set it up as a dedicated USB AIO printer. But, maybe some day, will decide to give it another go to see if I can narrow the problem down further. 13 I agree with all of you that this is a problem that shouldn’t be happening, especially with a company like HP. 14 (3) ToxicMan Message 121 of 159, 01-05-2011 07:59 PM 15 I just spent hours on the phone getting no where with HP once again, and this time its because my printer is no longer in Warranty. I have a case number on this issue that dates back to May 2010 and they now refuse phone support because I’m out of warranty (19 days). There was a patch released on 12/17 titled as follows: 16 17 18 19 20 21 22 23 24 25 26 27 28 » Windows 7 Critical Update to enhance reliability of network connection 2010-12-17 , Version:1.0, 11.22M This update corrects an issue which causes networkconnected printers to disappear from the system When I attempt to install this update, I get an error that says: “This update does not support any of the HP device drivers that you have on your PC. You do not need this software update.” Interesting. The critical update for the A909g doesn’t seem to apply to the A909g I have. Would like to know if anyone experiencing the fun I’m having has tried this update and what was the result... I’m getting very tired of turning off the printer and turning it back on every time I want to print from my PC. As always, my MAC is working fine... (4) DonnaNY Message 129 of 159, 01-11-2011 08:12 AM Gibson, Dunn & Crutcher LLP 8 Exhibit D, Page 8 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page32 of 60 1 2 3 4 5 6 7 8 9 I loaded this fix but my A909g still loses connectivity about monthly. So the fix doesn’t work. (5) ToxicMan Message 112 of 159, 12-01-2010 08:04 PM LOL. So true! And the printer works flawlessly from my MAC! If I want to print from windows, then I have to turn off the printer and restart it. True. Problem is somewhere between HP and Microsoft. Frustrating part is HP has release two specific patches for network connectivity and its still not fixed. That’s just unacceptable! But at least of me, my move off Windows has been a blessing! Everything just works on the MAC. It just works! I’ll keep following this but I have given up on HP and Microsoft. And I’m not looking back. 10 (6) Airstreamyogi Message 113 of 159, 12-02-2010 10:43 AM 11 Mine doesn’t respond to anything except unplugging it from the wall and plugging it back in, which makes the printer scold me about never doing that, and then adds an extra 5-10 minutes to my wait time while it runs through diagnostics. I paid a premium for a wireless printer, so advising us to use a cable sounds like a tacit acknowledgement that the product isn’t functioning as advertised, and just makes me want to take this back to the store and get my money back. 12 13 14 15 16 17 18 19 20 21 22 (7) dwightlathan77 Message 115 of 159, 12-16-2010 02:25 AM I have the same issues with 3 of my computers and the HP 8500. After doing everything I know of I’m thinking its a software issue with the driver. It only happens on my Vista computers, but not on my HP/Vista machine and it is usually accompanied with the driver being disabled on system startup. HP’s diagnostic utilities are of little use and either give feedback of corrupt drivers or just freeze time and time again after reinstallation. Right now their Network Diagnostics program can’t get past the network adapter’s test. The odd thing is that when all HP’s diagostic and printer software says the printer is disconnected, and I mean all of it, I can usually see the printer in network explorer and access its server’s administration site across my LAN. I’ve never seen a time when the router didn’t recognize it. Even if the computer doesn’t recognize it at all the router still provides it an IP address. 23 HP, I’d love you to fix this, it has to be costing you a lot of money with product returns and endless tech support. 24 (8) newportres Message 117 of 159, 12-17-2010 05:24 AM 25 This thread really is really depressing me. This is my new office printer and I came here looking for answers to the connection issue. 26 27 I am using a USB connection so none of the wireless information should be affecting me. 28 I am using XP pro so vista and 7 are not the issue. . . . Gibson, Dunn & Crutcher LLP 9 Exhibit D, Page 9 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page33 of 60 1 (9) 2 Well this was a depressing thread to read. I’m going on 6 hours of trying to troubleshoot a similar issue. 3 jayunsplanet Message 101 of 159, 10-20-2010 09:15 AM 4 We gave a user a new Windows 7 laptop and the issues haven’t stopped. They previously had a Windows XP laptop and we never had an issue. 5 I have uninstalled/reinstalled the HP software a 1/2 dozen times. 6 This morning, I HAD the issue fixed. Used HP software for printing and used Windows Fax & Scan for scanning.... then 30 minutes later, the user called and said the printer wasn’t printing. Sure enough, the printer wasn’t. Restarted, printer was gone. Couldn’t reconnect/“Add Device” like normal. 7 8 9 10 11 This is so frustrating. Doesn’t help the user is thousands of miles away working on a wireless connection. Thank God for LogMeIn and being able to log in myself after the computer restarts 2 dozen times after reinstalls of the HP software. (10) RevJohnLeach Message 104 of 159, 11-18-2010 11:47 AM 15 Can i join in with this discussion? Had my 8500 A909g about 18 months with few minor probs, but now got new computer with Win 7 64bit. Just recently the printer has taken to spontaneously going offline or losing connection. Lost count of how many times ive uninstalled/reinstalled, patched etc. Ive now tried losing the wireless and plugging ethernet into my router (Netgear DG834g). The really frustrating thing is that the printer works sporadically, but will often cancel a print job half way through printing and spit out half-blank paper, particularly when im doing double-sided. ….. 16 (11) MagicTH Message 92 of 159, 06-19-2010 01:14 PM 17 The reason I could not contact the printer after my Group Renewal test was the printer picked up a dynamic IP address, even though it is assigned a static IP address in the router. Why it did this is beyond me. I can print, but I still cannot contact the printer, even with it’s new IP address. 12 13 14 18 19 20 So 5 more hours wasted today. $100 printer. $1500 trouble-shooting time. Going printer shopping for a non HP printer. 21 (12) Lionika Message 93 of 159, 06-21-2010 10:52 AM 22 Hello, wow, I am so glad it wasn’t just me. I am on my third 8500 and thank goodness I got it from Costco so I could return it whenever I wanted to. I too have spent countless hours with HP chat techs and by the time I got through with the last one I was fuming and ready to swear at him. I wanted someone higher than him but he said there was no other level then the one that I got. They tried everything, went through my whole computer system and printer system. With this last printer I have uninstalled it so many times, if my computer could talk, it would be saying I’m an idiot and don’t know what I want. I have done the cycles, moved it to other parts of the house, connected straight to my router, plugged it into just about every wall plug I could find, but nothing worked. So I want to thank all of you for posting all your problems, the solutions you have tried and confirmed that your printer still doesn’t work because now I know it’s not me and I’m not nuts! THANK YOU! 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 10 Exhibit D, Page 10 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page34 of 60 1 (13) Otha Message 97 of 159, 09-19-2010 03:49 AM 2 I have the same problem. I dis connect all computers and still can not print. 3 (14) Horace1 Message 98 of 159, 09-19-2010 06:36 AM 4 As I have said before, I have been in contact with HP over this issue many times. I finally was referred to a higher support level, and the technician called me. After I explained that I had gotten to the point where my printer disconnected once or twice every week or two, he told me that was acceptable performance for wireless connectivity. In other words, what was I griping about. To me, this is an admission from HP that they either can’t or won’t pursue this problem. During this period, I have had 5 different computers with 3 different Operating Systems (XP, Vista, & Windows 7), and all of these systems have wireless connectivity to my Network, and have never lost this connectivity; only my HP printer??? I have also had 2 different wireless Network routers over this period, and both have performed the same. My printer is only 6 feet from my router with no obstruction between them, so in my opinion this issue rests solely with HP. For information purposes to other users, I have enabled automatic updating for my Windows OS’s, and almost every time an update is installed, the printer loses connectivity. When I told HP this, they wanted to lay the blame at Microsoft’s door, but I feel this just demonstrates that HP has a weakness in their wireless interface software/hardware. 5 6 7 8 9 10 11 12 13 14 (15) rlowsky, Message 100 of 159 09-24-2010 07:30 AM I also am NOT using wireless! 15 8500 is configured for wired ethernet, static IP address, energy savings mode OFF, radio OFF 16 PC #1 works 17 PC #2 looses connectivity Both PCs running XP 18 HP technicians have run extensive diagnostics but haven’t found a resolution! 19 (16) TSkin, Message 81 of 159, 05-10-2010 08:03 AM 20 24 I’ve had the 7250 for 18 months and have had no issues up till amonth or so ago. Now its a nightmare. I only get between 12-15 mins before it dropsI have trided numerous solutions posted on the forums. I appreciate the advice on reconnecting with the wireless radio, that did work. I have monitored the frequency of drop and notice its worse when there is alot of wireless activity in the house. (Iphones and laptops connecting on and off). Anybody else know if this is involved with their issue? I would love to buy another printer to be done with this but have checked other alternatives to a wireless “All in ones” but have come with nothing else that offers the fax as well. Any ideas? 25 (17) PrintDoc Message 2 of 159(12,185 Views) 10-22-2009 12:46 PM 26 Unfortunately, you are not alone. Search the forums for this problem and you will find several threads…. 21 22 23 27 28 I am employed by HP (18) Bob_Headrick Message 1 of 159 (12,197 Views) 10-22-2009 12:01 PM Gibson, Dunn & Crutcher LLP 11 Exhibit D, Page 11 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page35 of 60 1 2 3 4 5 6 7 8 9 HP Officejet Pro 8500 Wireless A909g Loses Connectivity Problem with HP Officejet Pro 8500 Wireless A909g New printer will not stay connected to the wireless network. The printer continuously drops the network connection. For 15-20 minutes at a time, it will go off-line, then come back on for ~5 mins. If you power off the printer it will re-connect. Energy Saving feature has been disabled. . . . The fact that it works when it is on-line makes me believe everything with the network connection is fine, other than the possibility that there is a signal problem. But since other devices with b cards, connect to the router with no problem, and the printer reports a strong connection I do not believe this is the problem. I currently have a script running that pings the server every minute and it still disconnects. 10 Bob Headrick, Microsoft MVP Windows Expert - Consumer. 11 25. 26. Notably, message number 17 above, was submitted by “PrintDoc” who lists 12 himself as an employee of HP, and informs Mr. Headrick who began the topic: “Unfortunately, 13 you are not alone. Search the forums for this problem and you will find several threads.” 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27. 26. Amazon.com has 414 customer reviews of the printer, ranging from 1 to 5 stars. Almost half of the ratings are the lowest rating, 1 star. 27. 28. Consumer Reports has 108 customer ratings of the printer. The average rating is 1.5 stars. Sample complaints include the following: (1) too many headaches, by Mad art teacher from Westchester County, NY on 2/2/2011 We have owned this printer for about 18 months and have found it to be very unreliable. We use it on a daily basis for just basic document scanning and printing. Several times we’ve had to reinstall the software to our computers because it stopped recognizing the wireless signals. Paper Jams are frequent; we cleared the most recent one but even with all the troubleshooting tips, cleaning, resetting of the power and paper particle inspections we’ve done, it refuses to operate. I am junking it and feel unsure as to whether to trust another Hp printer... (1) Very Frustrated With Performance, by Matthias from Salt Lake City, UT on 12/16/2010 When we first purchased this printer, we were plenty happy with the performance. It was a fairly simple set-up and it printed quickly and at a fairly high quality. Unfortunately, it has gone downhill fast the longer we owned it. At first, it simply stopped connecting to the wireless network which was the main reason we purchased it in the first place. Powering the printer off and on solved the Gibson, Dunn & Crutcher LLP 12 Exhibit D, Page 12 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page36 of 60 1 2 problem 50% of the time, but required that we pay full attention to the printer for the duration of its hissy fit. I wanted a printer, not another child. 5 Eventually, we had to give up and connect the computer using the USB, which has worked sufficiently until the last two weeks when it has started being finicky about printing even with a hard USB connection. I am now, as I type, working on 30 minutes of trying to get a single page printed. To me, this is unacceptable for a printer that I purchased specifically in order to free me from having to muck around with my printer. 6 (2) 7 throwing it away no windows 7 hardware have to download it. goes into sleep mode all the time have to unplug it to wake it up on/off button does not work. 3 4 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 do not buy if you go wireless, by timba from Clayton, NC on 10/12/2010 Will not buy an HP again (3) Never Worked/HP Cust Service Awful!, By Ron from Jupiter, FL on 9/6/2010 Unfortunately not likely to buy HP again. Product arrived but never worked on wireless or via USB. Couldn’t even get setup menu to work. Tried to contact HP Service repeatedly but received no answer. Wrote an email to CEO, received call from “special” customer service but they had no flexibility to work with my normal work schedule. Failure of product and failure of service. Have never seen anything so bad from a company that once was good. Don’t buy this product. (4) Not worth the trouble, By rrws from Wenatchee, WA on 6/17/2010 Had to switch from wireless to USB hookup because the wireless was so unreliable. Also, the fax was very unreliable. I had to refax pages everytime I faxed. Easy return though because I bought it at [...]. (5) Absolute Disaster, By HP Lippincott. from Nashua, NH on 4/18/2010 Have only used this product for printing and some copying. Never got a chance to use this for anything else. Also never got a chance to experience anything good about it. . . . Wireless connection would disconnect periodically. 28. 29. In or around November 2011, HP released the HP OfficeJet Pro 8600 Wireless. Surprisingly, HP did not redesign the wireless function to repair the Defect, but rather used the same defective wireless technology in the 8600 as it had in the 8500. 29. 30. Reviews on cnet.com for the HP OfficeJet Pro 8600 include the following: (1) HazeLyons Jun 16, 2013 Very disappointed with this printer and HP tech support which is the worst. Over the last month I have called HP no fewer than five times for the same problem, the wireless connectivity. It worked fine for the first four months and then the problems started. The blue light blinks and won’t connect despite the fact that the router is only two feet way. I wasted hours on the phone while they try to fix it. I have talked to at least five different techs. One tech will tell me one thing and another will tell me another. After an hour on the phone they “fix” it only to have it malfunction Gibson, Dunn & Crutcher LLP 13 Exhibit D, Page 13 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page37 of 60 1 2 3 4 5 6 7 8 9 10 11 again within a few hours or when I turn it off. The biggest thing they seem to want to do is sell me an extended warrantee for “the employee discount” of $79 instead of $99. How about just fix the problem? If you expect HP to stand behind their product and replace this machine as it is obviously malfunctioning guess again.....it hasn’t happened to for me. This printer gets two thumbs down from me as does HP Tech support. (2) ladybug4331 Jun 4, 2013 This printer is nothing more than a $280 paperweight. We’re on the 4th or 5th warranty replacement. I’ve lost track. It’s a lemon. I love all the features if the blasted thing would work. For no apparent reason, the screen flashes, and says “Printer Error” Turn unit off, then on. This happens several times a day. The most replacement did it after only 10 minutes of being installed. HP says I don’t have enough “power” coming to the house to run it. Oh yeah? We’ve run a flippin’ camper off an outlet before. Are they saying this requires more power than a camper? Why does our laptop, desktops, microwave, etc. work just fine? HP is selling us a copout. We’re asking for a full refund. I give up on HP. ladybug4331 Jun 4, 2013 12 Oh yeah... not to mention the fact that Scan to computer rarely works, it drops the network connection, prints the edges only of a page occasionally....JUNK! 13 (3) 14 I won’t buy another HP all-in-one. I’ve now had two top-of-the-line HP printers, and both gave me no end of fits with their wireless connectivity. One is now linked to router via ethernet because it still works fine except the wireless is broken. The other, an 8500 A909g, drops from the network repeatedly, apparently 15 16 17 18 19 20 21 22 23 24 25 26 bjboyd Dec 23, 2012 -- from reading blogs -- an inability to reconnect from sleep mode. (4) corenotions Nov 19, 2012 To sum it up poorly built, software is horrible, doesn’t stay connected, drivers all out of date and required patches or plug-ins, prints then sucks paper back into it for double sided printing even if not set to it. ePrint is useless. They took about Zero time to engineer this machine and I should know as I am one. If you own a MAC stay away as HP is so pro PC they probably sabotage this on purpose. Where the editors at CNET are getting this is the best printer, makes me question their expertise. 30. 31. Amazon.com includes the following reviews for the OfficeJet Pro 8600 Wireless : (1) 1.0 out of 5 stars Incredible problem dropping network connections, February 11, 2012 By Nan Ratner - 27 This model has incredible glitches that cause it to drop network connections constantly, and the only sure fix is to keep rebooting your entire system, 28 (2) 1.0 out of 5 stars Gibson, Dunn & Crutcher LLP 14 Exhibit D, Page 14 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page38 of 60 1 2 Grueling experience, thanks to the touch screen, March 5, 2012 By Joe Smith “Mystery Shopper” (Atlanta, GA) 4 Wireless network connection... ah that would have been nice, seeing that it is a wireless-capable printer. But no, we were unable to connect to the wireless network, unlike all the other devices (laptops, phones and more) that easily connected. 5 (3) 6 Nothing but problems, December 16, 2011 By Kirsten Dumford 7 I have been using HP all-in-one products for the past 9 years with good results, but was wary when I had to replace mine with the 8600 model because of poor reviews in Consumer Reports. I have had nothing but problems with my new 8600 model. I have literally spent 6 hours with tech support maintaining the connection between my computer and the printer, and needed additional help for the printer to print photos, and use the scanner. I have had trouble in so many different areas of using this model that I am ready to give up on it and try another brand. 3 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (4) 1.0 out of 5 stars 1.0 out of 5 stars Do not buy if you run Windows XP, February 20, 2012 By Nick – The fine print failed to mention that this printer DOES NOT WORK when running windows XP on a network. Finally, after several agonizing days of sudden ‘cannot find printer on network’ error messages (and (interestingly) no obvious way to contact HP for support, I finally found a “fix” burrowed down deep in HP (so-called) ‘support’ site that has to do with print cartridge alerts and the need to disable “scan to computer”. We’ll see. If I get the error again, this sucker goes back (or may be found smashed in the street). (5) 1.0 out of 5 stars Printer not found, July 20, 2012 By D. A. Yarnold “Alamodave” (Alamo, CA, US) Incredibly frustrating. After uninstalling and reinstalling the printer, it works on the network briefly. Then it drops the network...so you can see the printer on the network, but when you go to print it tells you the printer is not connected. I’ve tried to fix and redo dozens of times...to no avail...same result. Sooooo frustrating. Should be a good printer, but clearly the connectivity issue (noted by a bunch of other reviewers) stinks. Realized I wouldn’t be able to make this work about 32 days after it was delivered, so now I’m stuck with it. (6) 1.0 out of 5 stars THIS PRINTER SUCKS!!! TOTAL WASTE OF MONEY!!, June 10, 2013 By Tina Willis Gibson, Dunn & Crutcher LLP 15 Exhibit D, Page 15 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page39 of 60 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 This printer simply does not print unless you have a certain type of router (our router is Netgear, fairly new, and the printer does not work). The printer worked for a while then the router apparently scrambles the channel or something, so we cannot print. The router cannot be changed. I don’t know what type of router will work, but this printer completely sucks. We spent more than this price less than a month ago and have gone through endless troubleshooting (we also purchased a warranty--complete waste also--zero help). So we are now literally throwing this in the trash and I’m back on amazon looking for a printer that will actually print. Total waste of our money and they do not tell you that you need a special kind of router when you are buying (and I don’t even know how you would know what kind of router--our router is a standard, new router we purchased from Best Buy and have never had any problems with it before this stupid printer). Stay away if you don’t want to waste your money!! HP sucks!!!!! (7) 1.0 out of 5 stars totally unreliable, April 17, 2013 By T. Nicholas Kypreos (Gainesville, FL) This thing is nothing but frustration. You fight each time to perform the simplest task and it rewards you by randomly losing connectivity. (8) 1.0 out of 5 stars, July 15, 2012 By Jane E. Fratesi “Doberman Lover” (Atlanta, GA) I purchased this printer to replace an HP Photosmart when it stopped working. As many problems as the old printer had, I wish I still had it. This printer was difficult to set up. It took many tries before getting it connected to my wireless network. I am still unable to use the ePrint functionality. Whenever I try to use it, I get the message “the printer could not connect to the server”. I have not called support about this. I spent very much time on the phone with them just trying to get the printer set up, and I needed a break. (9) 1.0 out of 5 stars Buggy as buggy can be, June 18, 2013 By Robson C. Cozendey – HP used to be a nice brand, but so far it is the worst for me. This printer is buggy in many different levels. Printer error messages happens a lot of time, the network connection keeps dropping every time, the papers keep getting stuck together in the tray, so you have to manually separate them. I contacted support and had no response in more than a week. After that, I just got an automated message that they’re looking after it. And I’m looking for another printer, not from HP of course. 31. 32. HP nevertheless marketed and sold the HP Wireless Printers as “Wireless All-in- One Printers” and actively concealed the Defect from Ferranti, Martinho, and the Class Members at the time of purchase, lease, or repair and thereafter. Specifically, HP: a. Failed to disclose and/or actively concealed at the time of purchase, lease, or repair and thereafter that the HP Wireless Printers were defective and would develop wireless 28 Gibson, Dunn & Crutcher LLP 16 Exhibit D, Page 16 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page40 of 60 1 function defect with normal use, despite the fact that HP learned of the Defect at the latest in 2 April 2009, if not before; 3 a. Failed to disclose and/or actively concealed, at the time of purchase, lease, or 4 repair and thereafter, any and all known material defects in the HP Wireless Printers, including 5 the Defect and, among others, the outrageous repair costs for failure of the wireless function that 6 should have been covered under warranty; 7 b. Failed to disclose and/or actively concealed, at the time of purchase, lease, or 8 repair and thereafter, that because of the HP Wireless Printers’ defective design and/or 9 manufacture, customers would continue to experience failure of the wireless function problems 10 11 with normal use even after attempting the various work- arounds suggested by HP. 32. 33. The HP Wireless Printers come with HP’s Limited Warranty (the “Warranty”), 12 warranting that the product is free from defects in materials and workmanship. The Warranty 13 covers defects that arise as a result of normal use of the product and excludes problems that 14 arise from improper maintenance or modification; unsupported software, media, parts or 15 supplies; operation outside the product’s specifications; or unauthorized modification or misuse. 16 specifications; or unauthorized modification or misuse. 17 34. 33. The Warranty covers the HP Wireless Printers for one year from date of 18 purchase or, in the case of HP Wireless Printers received as a warranty replacement, for one year 19 from the date of the warranty replacement. 20 21 22 34. 35. Under the Warranty, HP agrees to repair or replace the product or refund the purchase price.the purchase price. 36. Despite the fact that the failure of the wireless function is caused by the Defect and 23 is not the result of any of the excluded causes, HP routinely refuses to (a) properly repair 24 customers’ HP Wireless Printers under the Warranty, (b) replace the defective HP Wireless 25 Printer with a non-defective printer, or (c) refund the purchase price. HP fails to disclose to 26 customers that the failure of the wireless function is caused by the HP Wireless Printers’ defective 27 design and/or manufacture. 28 Gibson, Dunn & Crutcher LLP 17 Exhibit D, Page 17 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page41 of 60 1 35. 37. The HP Wireless Printers all share this same Defect. Because of the Defect, 2 the HP Wireless Printers are substantially certain to malfunction during the printers’ useful life. The 3 failure of the wireless function results from normal use and is not the result of any excluded cause. 4 36. 38. When HP fails to honor its warranty, it fails to disclose that the malfunctions 5 of the HP Wireless Printers’ wireless function are the result of the Defect. HP refuses to refund 6 the purchase price, instead giving customers troubleshooting tips that do not address the root 7 cause of the Defect and, at best, constitute temporary work- arounds or provides a replacement 8 printer that contains the same Defect. 9 10 PLAINTIFF VINCENT FERRANTI 37. 39. On March 25, 2009 Ferranti obtained a defective HP 8500 Wireless All- in-One 11 Printer as a Warranty replacement for a different model defective HP printer. At that time, HP 12 marketed and sold this printer as a “Wireless All-in-One Printer” and failed to disclose and actively 13 concealed that the printer’s wireless function was defective and would fail with normal use. If 14 Ferranti had known of the Defect, he would not have accepted the printer as a warranty 15 replacement or would have paid less for it. 16 38. 40. Ferranti soon noticed that the printer’s wireless function did not work. He 17 contacted HP. HP acknowledged that Ferranti’s printer was covered by HP’s limited warranty, 18 with a warranty start date of March 25, 2009, and attempted to provide technical support, but were 19 unable to fix the Defectrather than honor its warranty obligation to repair or replace the defective 20 part, had a customer service representative take Ferranti through various “trouble-shooting” 21 procedures (described above) which HP falsely represented could fix the problem. HP knew that 22 the Defect was caused by defective materials within the printer, as described herein, and was a 23 problem that could not be fixed by these troubleshooting procedures. This fact was within the 24 exclusive knowledge of HP and was unavailable to Ferranti or the public. Additionally, HP 25 actively concealed material facts from Ferranti by representing that the problem could be fixed by 26 these troubleshooting techniques when in fact the printers had defective hardware that needed to be 27 repaired or replaced. 28 Gibson, Dunn & Crutcher LLP 18 Exhibit D, Page 18 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page42 of 60 1 41. Less than six months later, on September 27, 2009, Ferranti exchanged his defective 2 HP Officejet Pro 8500 Wireless All-in-One printer (model CB023A, serial MY91J21015) for 3 the same model at OfficeMax (model CB023A, serial CN02M6R10F). Again, HP failed to disclose 4 and actively concealed that the printer’s wireless function was defective and would fail with 5 normal use. Once again, rather than honor its warranty obligation to repair or replace the 6 defective part, HP had a customer service representative take Ferranti through various 7 “trouble-shooting” procedures which HP falsely represented could fix the problem. HP again knew 8 that the Defect was caused by defective materials within the printer, as described herein, and was a 9 problem that could not be fixed by these troubleshooting procedures. This fact was within the 10 exclusive knowledge of HP and was unavailable to Ferranti or the public. Additionally, HP 11 actively concealed material facts from Ferranti by representing that the problem could be fixed by 12 these troubleshooting techniques when in fact the printers had defective hardware that needed 13 to be repaired or replaced. 14 39. If Ferranti had known that the new printer suffered from the same Defect as the old 15 one, he would not have exchanged his old printer for the new one or would have paid less for the new 16 printer. 17 40. 42. Each time Ferranti obtained an HP Wireless Printer, either through purchase, 18 exchange, or replacement, he received HP’s standard one year warranty. At no time did HP 19 disclose that the printer’s wireless function was defective and would fail with normal use. 20 41. 43. Ferranti contacted HP via its Tech Support department multiple times to notify 21 HP of the Defect and request repair or replacement (including April 2010, November 2010, July 22 2011, January 2012, January 2013, April 2013, and May 2013). Each time HP failed to honor its 23 warranty, by offering the “troubleshooting” assistance which it knew could not fix the defective 24 materials in the printer which constituted the defect. 25 42. 44. HP was never able to repair the Defect. Instead, HP offered temporary 26 troubleshooting resolutions which failed to repair the Defect, including uninstalling and 27 reinstalling software, downloading and installing firmware updates or patches, restarting the 28 computer, restarting the wireless router, restarting the printer, downloading and installing HP Gibson, Dunn & Crutcher LLP 19 Exhibit D, Page 19 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page43 of 60 1 diagnostic tools to help identify and fix issues, inputting wireless router settings into the LCD 2 panel on the printer, disabling “energy save mode” on printer, and changing the setup of the 3 standard IP address to be “static” rather than dynamic. 4 43. 45. During one call Ferranti had with an HP Tech support agent, after the agent 5 went through the process of uninstalling and reinstalling software and applying patches and 6 updates, the agent admitted that the malfunctions were being caused by a hardware defect, 7 specifically a defect on the radio button’s wireless functionality, which defect would continue to 8 be a problem and would continue to get worse. She then offered a discount off a new printer, 9 but never offered a full refund as required by the Warranty in situations where HP is unable to 10 repair or replace a defective printer. Within a couple of weeks of the HP Tech support agent’s 11 attempt to repair Ferranti’s printer, wireless connectivity was not working again, and the printer 12 was unable to print or scan. HP was never able to provide a proper repair for the Defect, 13 rendering the printer’s wireless feature useless. 14 15 16 44. Mr. Ferranti, on multiple occasions, requested that HP either refund the purchase price of his printer, or replace it with a printer with a wireless feature that functioned properly. 45. 46. Other than one agent’s candid admission (which other HP representatives 17 denied), HP failed to advise Ferranti that the wireless Defect was a result of the HP Wireless 18 Printer’s defective design and/or manufacture. 19 46. Ferranti did not discover that the defect was a hardware defect that could not be 20 fixed by the various troubleshooting techniques suggested by HP until well after August 20, 2010. 21 Additionally, he was unable to discover the defect before then despite reasonable diligence. 22 47. Ferranti demonstrated reasonable diligence by making multiple calls to HP before 23 August 20, 2010 and asking why his printer’s wireless function was failing and he was consistently 24 told by HP that the problems he was experiencing could be fixed by utilizing the troubleshooting 25 techniques (described herein) explained by HP’s customer service representatives. If he would 26 have had reason to believe the problem was caused by a hardware defect he would not have 27 wasted the hours of time he spent working through these troubleshooting procedures. 28 Gibson, Dunn & Crutcher LLP 20 Exhibit D, Page 20 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page44 of 60 1 48. It was only after numerous calls, and numerous hours of going through these 2 troubleshooting procedures, after August 20, 2010, that an HP customer service representative 3 first told him the problem was a hardware defect that could not be fixed with these 4 troubleshooting techniques. Even then, other HP representatives denied this fact and told him that 5 he misunderstood what he had been told. 6 47. 49. Ferranti contacted HP, the California Attorney General, the Better 7 Business Bureau, and the FTC Bureau of Consumer Protection in an attempt to persuade HP to 8 honor the terms of the Warranty, all to no avail. 9 10 50. 48. HP persisted in its refusal to acknowledge that the printer had a defect and that its suggestions did not properly repair it. 11 12 PLAINTIFF CARLOS MARTINHO 51. 49. On or about December 22, 2009, Carlos Martinho purchased an HP Wireless 13 Printer model number 8500 at a Staples store in Vestal, Broome County, New York, for use in his 14 home. At the time of purchase, HP marketed and sold the printer as a “Wireless All-in-One Printer” 15 and actively concealed the Defect from and failed to disclose the Defect to Martinho. As soon as 16 he set the printer up in his home, Martinho realized that the printer could not establish a useable 17 wireless connection. 18 52. 50. Concluding that the unit he had purchased was defective, on or about 19 December 28, 2009, Martinho took the printer back to the Staples store and exchanged it for 20 another HP Wireless Printer of the same model. Again, HP marketed and sold the printer as a 21 “Wireless All-in-One Printer” and actively concealed the Defect from and failed to disclose the 22 Defect to Martinho. After only one day of using the second HP Wireless Printer, Martinho 23 realized that the second HP Wireless Printer also could not establish a useable wireless 24 connection.Wireless Printer, Martinho realized that the second HP Wireless Printer also could not 25 establish a useable wireless connection. 26 53. 51. On various occasions beginning on or about December 23, 2009, Martinho called 27 HP customer support, and HP customer support told him that wireless connection problems in the 28 HP Wireless Printers were a known issue, for which HP was working on a software patch solution. Gibson, Dunn & Crutcher LLP 21 Exhibit D, Page 21 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page45 of 60 1 Following the instructions from HP’s representatives, Martinho downloaded and installed 10 2 different software patches. None of the patches fixed the Defect. 3 52. 54. After several weeks of frustration, Martinho purchased an HP 8600 printer 4 from the same Staples store on or about January 19, 2010. At the time of purchase, HP marketed 5 and sold the printer as a “Wireless All-in-One Printer” and actively concealed the Defect from and 6 failed to disclose the Defect to Martinho. After approximately one week of using the third HP 7 Wireless Printer, Martinho realized that it was also defective and could not establish a useable 8 wireless connection. Again, he attempted to contact HP customer support, but they failed to fix the 9 Defect. From that point on, Martinho was unable to use his HP Wireless Printer wirelesslyand 10 11 requested HP to honor its warranty. 55. Rather than honor its warranty obligation to repair or replace the defective part, HP 12 had a customer service representative take Martinho through various “trouble- shooting” 13 procedures, described above, which HP falsely represented could fix the problem. HP knew that the 14 Defect was caused by defective materials within the printer, as described herein, and was a problem 15 that could not be fixed by these troubleshooting procedures. This fact was within the exclusive 16 knowledge of HP and was unavailable to Martinho or the public. Additionally, HP actively 17 concealed material facts from Martinho by representing that the problem could be fixed by these 18 troubleshooting techniques when in fact the printers had defective hardware that needed to be 19 repaired or replaced. 20 56. If Marinho had known that the new printer suffered from the same Defect as the old 21 one, he would not have purchased the new one. At no time did HP disclose that the printer’s 22 wireless function was defective and would fail with normal use. 23 24 25 57. HP was never able to provide a proper repair for the Defect, rendering the printer’s wireless feature useless. 58. Martinho did not discover that the defect was a hardware defect that could not be 26 fixed by the various troubleshooting techniques suggested by HP until well after November 8, 27 2010. Additionally, he was unable to discover the defect before then despite reasonable 28 diligence. Gibson, Dunn & Crutcher LLP 22 Exhibit D, Page 22 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page46 of 60 1 59. Martinho demonstrated reasonable diligence by making multiple calls to HP before 2 November 8, 2010 and asking why his printer’s wireless function was failing and he was 3 consistently told by HP that the problems he was experiencing could be fixed by utilizing the 4 troubleshooting techniques (described herein) explained by HP’s customer service representatives. 5 If he would have had reason to believe the problem was caused by a hardware defect he would 6 not have wasted the hours of time he spent working through these troubleshooting procedures. 7 60. It was only after numerous calls, and numerous hours of going through these 8 troubleshooting procedures, after November 8, 2010, that Martinho first discovered the problem 9 was caused by defective hardware that could not be fixed by any of these troubleshooting 10 techniques. 11 61. 12 Martinho, on multiple occasions, requested that HP either refund the purchase price of his printer, or replace it with a printer with a wireless feature that functioned properly. 13 CLASS ACTION ALLEGATIONS 14 62. 53. Ferranti and Martinho bring this action on behalf of themselves and as 15 representatives of the following class (the “Class”) and subclass ( “Subclass A”) initially defined 16 as: 17 18 19 20 21 22 23 24 25 26 27 28 Class: All persons and entities in the United States (including its Territories and the District of Columbia) who currently own or lease or formerly owned or leased an HP Officejet Pro 8500 or 8600 Wireless All- in-One printer. Subclass A: All Class Members who notified HP of the Defect during the term of the Warranty. Excluded from the Class and Subclass A are: (1) HP, its subsidiaries, and its legal representatives, officers, directors, assigns, and successors; and (2) all federal court judges who may preside over this case, their staff, and their immediate family members. 54. 63. In the alternative, if the Court finds that California consumer protection law should not be uniformly applied to the claims of the proposed Class, Plaintiffs propose the following State Subclasses: Arizona Subclass: All Class Members who purchased or leased HP Wireless Printers in Arizona. The proposed Arizona Subclass representative is Vincent Ferranti. Gibson, Dunn & Crutcher LLP 23 Exhibit D, Page 23 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page47 of 60 1 2 New York Subclass: All Class Members who purchased or leased HP Wireless Printers in New York. The proposed New York Subclass representative is Carlos Martinho. 3 64. 55. This action has been brought and may properly be maintained pursuant to the 4 provisions of the Code of Civil Procedure § 382 and Civil Code § 1750 et seq., because, 5 among other things, HP’s acts and practices as complained of herein emanated from California and 6 Defendant conducts substantial business in California. 65. 7 56. Ascertainability. The Class and subclasses are objectively defined so that the 8 members of the Class and subclasses are ascertainable by reference to HP’s records of purchasers 9 and/or lessees of its printers and HP’s records of complaints, technical support requests, and repair 10 service requests regarding the Defect in the wireless function, as well as Class Members’ testimony 11 and physical evidence. 66. 12 57. Numerosity. FED. R. CIV. P. 23(a)(1). Ferranti and Martinho do not know the 13 exact size of the Class and subclasses. Because thousands of people in the United States have 14 purchased or leased a HP Wireless Printer, Ferranti and Martinho believe the Class and 15 Subclass Members are so numerous and geographically dispersed as to render joinder of all 16 Class or Subclass Members impracticable. The number of Class and Subclass Members and their 17 identities and addresses can be readily ascertained from HP’s records and Class Members’ 18 testimony and physical evidence. 19 mail, supplemented, if the Court deems appropriate, by published notice. Members may be notified 20 of this action by first-class mail, supplemented, if the Court deems appropriate, by published 21 notice. 22 67. Class Members may be notified of this action by first-class 58. Existence and Predominance of Common Questions of Fact and Law. FED. 23 R. CIV. P. 23(a)(2). Common questions of law and fact exist as to all members of the Class and 24 Subclasses. These questions predominate over the questions affecting only individual Class 25 Members. These common legal and factual questions include: 26 27 28 a. Whether HP designed, manufactured, marketed, sold and/or leased HP Wireless Printer printers that are defective; b. Whether HP’s Warranty covers the wireless function’s failure; Gibson, Dunn & Crutcher LLP 24 Exhibit D, Page 24 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page48 of 60 1 2 c. restore the wireless function breaches the Warranty; 3 4 11 12 13 14 15 e. Whether HP reasonably should have known of the Defect before it sold the HP f. Whether HP had a duty to disclose the defective nature of the HP Wireless Printers to Ferranti, Martinho, and the Class Members; 9 10 Whether HP knew of the Defect and, if so, how long HP has known of the Wireless Printers to Ferranti, Martinho, and the Class Members; 7 8 d. Defect; 5 6 Whether HP’s refusal to adequately repair the printers in such a manner as to g. Whether HP failed to disclose or concealed material information concerning the h. Whether HP’s conduct and business practices violate the Consumer Legal Defect; Remedies Act (“CLRA”), Civil Code § 1750 et seq.; i. Whether HP’s conduct and business practices violate the Unfair Competition Law (“UCL”), Business & Professions Code § 17200 et seq.; j. Whether Ferranti, Martinho, and the Class Members are entitled to relief, and the 16 amount and nature of such relief, including relief in the form of an injunction and/or restitution. the 17 form of an injunction and/or restitution. 18 59. 68. Typicality. FED. R. CIV. P. 23(a)(3). Ferranti’s and Martinho’s claims are 19 typical of those of other Class and subclass Members. Ferranti, Martinho, and all members of the 20 Class have been damaged by the same wrongful conduct by HP. Like the other Class Members, 21 Ferranti and Martinho purchased and/or leased defective HP Wireless Printers. 22 69. 60. Adequacy. FED. R. CIV. P. 23(a)(4). Ferranti and Martinho are adequate 23 representatives of the Class and subclasses because their interests do not conflict with those of 24 the Class or subclass Members. Ferranti and Martinho have retained competent counsel 25 experienced in complex class action litigation. Ferranti and Martinho intend to prosecute this 26 action vigorously and protect the interests of the Class and subclasses. Ferranti, Martinho, and 27 their counsel will fairly and adequately protect the Class Members’ interests. 28 Gibson, Dunn & Crutcher LLP 25 Exhibit D, Page 25 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page49 of 60 1 70. 61. Superiority. FED. R. CIV. P. 23(b)(3). Questions of law and fact predominate 2 over questions affecting only individual members of the Class and subclasses, and a class action 3 is superior to other available methods for fair and efficient adjudication of this controversy. The 4 issues in this litigation include only HP’s design, manufacturing, marketing, sale and/or lease of 5 defective HP Wireless Printers and do not include any other potential individual disputes between 6 putative Class Members and HP. The damages suffered by each Class Member are such that 7 individual prosecution would prove burdensome and expensive for the Class Members and the 8 court system. Individualized litigation would increase the delay and expense to all parties and the 9 court system and present a potential for inconsistent or contradictory judgments. By contrast, 10 class action litigation presents fewer management difficulties and provides the benefits of single 11 adjudication, economy of scale, and comprehensive supervision by a single court. single adjudication, 12 economy of scale, and comprehensive supervision by a single court. 13 FIRST CAUSE OF ACTION (Violation of the Consumers Legal Remedies Act, CAL. CIV. CODE § 1750, et seq.) 14 15 16 17 71. 62. HP is a “person” within the meaning of Civil Code §§ 1761(d) and 1770, and it provides “goods” within the meaning of Civil Code §§ 1761(a) and 1770. 72. 63. Ferranti, Martinho, and the Class Members are “consumers” who purchased 18 and/or leased a HP Wireless Printer for business purposes and personal, family, or household 19 purposes within the meaning of California Civil Code §§ 1761(d) and 1770. Ferranti’s, 20 Martinho’s, and each Class Member’s purchase or lease of an HP Wireless Printer constitutes a 21 “transaction” within the meaning of Civil Code §§ 1761(e) and 1770. 22 73. 64. By failing to disclose and concealing the defective nature of the HP Wireless 23 Printers from Ferranti, Martinho, and the Class Members, HP violated California Civil Code § 24 1770(a), as it represented that the HP Wireless Printers had characteristics and benefits they do 25 not have and represented that the HP Wireless Printers were of a particular standard, quality, or 26 grade when they were of another. See CAL. CIV. CODE §§ 1770(a)(5) & (7). 27 28 74. 65. HP has engaged in business practices that violate the CLRA including, without limitation, marketing and selling the HP Wireless Printers as “Wireless All-in- One Gibson, Dunn & Crutcher LLP 26 Exhibit D, Page 26 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page50 of 60 1 Printers” while failing to disclose or concealing that the HP Wireless Printers were manufactured 2 with the Defect. HP’s unfair and deceptive acts or practices occurred repeatedly in HP’s trade 3 or business and were capable of deceiving a substantial portion of the purchasing public. 4 5 75. develop the wireless function Defect from normal use. 6 7 76. 67. HP has a duty to Ferranti, Martinho, and the Class Members to disclose the defective nature of the HP Wireless Printers because: 8 9 66. HP knew that the HP Wireless Printers were defective and that they would a. HP was in a superior position to know the true state of facts about the Defectowed a duty to Plaintiffs and its customers because (as described above) HP had exclusive knowledge 10 that the HP Wireless Printers suffered from the Defect, a material fact not known to Ferranti, 11 Martinho and HP’s other customers; 12 b. HP also owed a duty to Plaintiffs because (as described above) HP actively concealed 13 a material fact from Plaintiffs, namely that the printers had a hardware defect that was not fixable 14 via the troubleshooting techniques employed by HP’s customer service representatives over the 15 phone. HP actively concealed this by taking its customers through the troubleshooting 16 procedures and representing that these procedures could fix the defect despite knowing this was 17 untrue; ; 18 c. b. Ferranti, Martinho, and the Class Members could not reasonably have been 19 expected to learn or discover that the HP Wireless Printers were defective until they experienced 20 the wireless function’s failure and experienced the troubleshooting techniques failed repeatedly; 21 and 22 23 24 25 26 d. c. HP knew that Ferranti, Martinho, and the Class Members could not reasonably have been expected to learn about or discover the Defect. 77. 68. By failing to disclose the Defect, HP has knowingly and intentionally concealed material facts and breached its duty not to do so. 78. 69. The facts concealed or not disclosed by HP to Ferranti, Martinho, and the Class 27 Members are material because a reasonable consumer would have considered them to be important 28 in deciding whether or not to purchase the HP Wireless Printers, or to pay less for them. Had Gibson, Dunn & Crutcher LLP 27 Exhibit D, Page 27 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page51 of 60 1 Ferranti, Martinho, and the Class Members known that the HP Wireless Printers were 2 defective, they would not have purchased the HP Wireless Printers or would have paid less for 3 them. 4 79. 70. Ferranti, Martinho, and the Class Members are reasonable consumers who do not 5 expect their printers’ wireless function to cease operating with normal use. That is the reasonable and 6 objective consumer expectation for wireless printers. 7 80. 71. As a result of HP’s acts and practices alleged herein, Ferranti, Martinho, and the 8 Class Members suffered actual damages in that their printers are defective in a way that causes 9 the printers’ wireless function to cease operating with normal use. As a direct and proximate result 10 of HP’s unfair or deceptive acts or practices, Ferranti, Martinho, and the Class Members have 11 suffered and will continue to suffer actual damages. 12 13 14 72. Ferranti, Martinho, and the Class Members are entitled to equitable relief and monetary, compensatory, and punitive damages. 81. 73. Ferranti has provided HP with notice of its alleged violations of the CLRA 15 pursuant to California Civil Code § 1782(a), and HP failed to provide appropriate relief for its 16 violation of the CLRA within 30 days of the notice letter. 17 SECOND CAUSE OF ACTION 18 (For unlawful, unfair, and fraudulent business practices under California Business and Professions Code § 17200 et seq.) 19 20 21 22 23 24 25 26 27 28 82. 74. Ferranti and Martinho incorporate by reference and reallege all of the preceding paragraphs. 83. 75. Ferranti and Martinho bring this cause of action on behalf of themselves and on behalf of the Class against HP. 84. 76. HP knew the HP Wireless Printers were defectively designed and/or manufactured and that the printers’ wireless function would cease operating with normal use. HP nevertheless marketed and sold the HP Wireless Printers as “Wireless All-in- One Printers” while failing to disclose and actively concealing the Defect. 77. Gibson, Dunn & Crutcher LLP 28 Exhibit D, Page 28 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page52 of 60 1 2 3 4 5 85. In failing to disclose the Defect, HP has knowingly and intentionally concealed material facts and breached its duty not to do so. 86. 78. HP was under a duty to Ferranti, Martinho, and the Class Members to disclose the defective nature of the HP Wireless Printers because: a. HP was in a superior position to know the true state of facts about the Defecthad 6 exclusive knowledge that the HP Wireless Printers suffered from the Defect, a material fact not 7 known to Ferranti, Martinho and HP’s other customers; 8 9 10 11 12 13 14 15 b. HP made partial disclosures about the quality of the HP Wireless Printers without revealing the defective nature of the HP Wireless Printers and the fact that the printer would develop the wireless function Defect with normal use; c. HP actively concealed the defective nature of the HP Wireless Printers from Ferranti, Martinho, and the Class Members (as described above). c. HP knew that Ferranti, Martinho, and the Class Members could not reasonably have been expected to learn about or discover the Defect. 87. 79. The facts concealed or not disclosed by HP to Ferranti, Martinho, and the Class 16 Members are material because a reasonable person would have considered them to be important in 17 deciding whether or not to purchase HP’s HP Wireless Printers, or to pay less for them. Had 18 Ferranti, Martinho, and the Class Members known that the HP Wireless Printers suffered from 19 the Defect described in this Complaint, they would not have purchased the HP Wireless Printers or 20 would have paid less for them. 21 88. 80. HP continued to conceal the defective nature of the HP Wireless Printers even 22 after Class Members began to report problems. Indeed, HP continues to cover up and conceal the 23 true nature of the problem and deny valid warranty claims. 24 25 26 27 81. 89. By this conduct, HP has engaged in unfair competition and unlawful, unfair, and fraudulent business practices. 90. 82. HP’s unfair or deceptive acts or practices occurred repeatedly in HP’s trade or business and were capable of deceiving a substantial portion of the purchasing public. 28 Gibson, Dunn & Crutcher LLP 29 Exhibit D, Page 29 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page53 of 60 1 91. 83. As a direct and proximate result of HP’s unfair and deceptive practices, 2 Ferranti, Martinho, and the Class Members have suffered and will continue to suffer actual 3 damages. 4 92. 84. HP has been unjustly enriched and should be required to make restitution to 5 Ferranti, Martinho, and the Class Members pursuant to §§ 17203 and 17204 of the Business & 6 Professions Code. 7 THIRD CAUSE OF ACTION 8 (on behalf of Subclass A for Breach of Express Warranty under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301 et seq.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 93. 85. Ferranti and Martinho incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 94. 86. Ferranti and Martinho bring this action on behalf of themselves and on behalf of Subclass A against HP. 95. 87. Ferranti, Martinho, and the members of Subclass A are “consumers” within the meaning of the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301(3). 96. 88. HP is a “supplier” and “warrantor” within the meaning of 15 U.S.C. §§ 2301(4)-(5). 97. 89. The HP Wireless Printers are “consumer products” within the meaning of 15 U.S.C. § 2301(1). 98. 90. HP’s Warranty is a “written warranty” within the meaning of 15 U.S.C. § 2301(6). 99. 91. HP breached the Warranty by: a. a. Extending a one-year limited warranty with the purchase or lease of the HP Wireless Printers, thereby warranting to repair or replace printers defective in material or workmanship at no cost to the owner or lessee, or refunding the purchase price; b. Selling and leasing the HP Wireless Printers with defective design and/or manufacture such that the printers would experience the wireless function Defect with normal use, requiring repair or replacement within the warranty period; Gibson, Dunn & Crutcher LLP 30 Exhibit D, Page 30 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page54 of 60 1 c. Refusing to honor the express warranty by refusing to properly repair or replace 2 the printers with properly functioning printers, instead suggesting only software “work-arounds” 3 and other troubleshooting techniques which failed to repair the Defect; and repair the Defect; and 4 d. Refusing to honor the express warranty by repairing or replacing the printers with 5 non-defective parts or refunding the purchase price, despite numerous requests for these remedies 6 from customers with defective printers. 7 8 9 100. 92. HP’s breach of the express warranty deprived Ferranti, Martinho, and the members of Subclass A of the benefits of their bargains. 101. 93. The amount in controversy of Ferranti’s and Martinho’s individual claims meets 10 or exceeds the sum or value of $25. In addition, the amount in controversy meets or exceeds the 11 sum or value of $50,000 (exclusive of interests and costs) computed on the basis of all claims to be 12 determined in this suit. 13 102. 94. HP has been afforded a reasonable opportunity to cure its breach of written 14 warranty, including when Ferranti, Martinho, and the members of Subclass A notified HP of the 15 Defect and requested a proper repair, replacement or refund. 16 103. 95. As a direct and proximate direct and proximate result of HP’s breach of 17 written warranty, Ferranti, Martinho, and the members of Subclass A sustained damages and other 18 losses in an amount to be determined at trial. HP’s conduct damaged Ferranti, Martinho, and the 19 members of Subclass A, who are entitled to recover damages, consequential damages, specific 20 performance, diminution in value, costs, attorneys’ fees, rescission, and/or other relief as 21 appropriate. 22 FIFTHFOURTH CAUSE OF ACTION (on behalf of Subclass A for Breach of Express Warranty) 23 24 25 26 27 104. 96. Ferranti and Martinho incorporate by reference the allegations contained in the preceding paragraphs of this Complaint. 105. 97. Ferranti and Martinho bring this action on behalf of themselves and on behalf of Subclass A against HP. 28 Gibson, Dunn & Crutcher LLP 31 Exhibit D, Page 31 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page55 of 60 1 98. HP warranted that each HP Wireless Printer was free of defects when it sold the 2 printers to Ferranti, Martinho, and the Class Members as described in this Complaint. Under 3 the terms of HP’s Warranty, each HP Wireless Printer came with an express Warranty that 4 warrants that the printer will be free from defects in materials and workmanship under normal use 5 for one year. 6 7 106. 99. This Warranty became part of the basis of the bargain. Accordingly, HP’s Warranty is an express warranty. 8 107. 100. HP breached the express warranty by: 9 a. Extending a one-year limited warranty with the purchase or lease of the HP 10 Wireless Printers, thereby warranting to repair or replace printers defective in material or 11 workmanship at no cost to the owner or lessee, or refunding the purchase price; 12 b. Selling and leasing the HP Wireless Printers with defective design and/or 13 manufacture such that the printers would develop the wireless function Defect with normal use, 14 requiring repair or replacement within the warranty period; 15 c. c. Refusing to honor the express warranty by repairing or replacing the 16 Printers free of charge, instead suggesting only software “work-arounds” and other troubleshooting 17 techniques which failed to repair the Defect; and 18 d. Refusing to honor the express warranty by repairing or replacing the Printers with 19 non-defective parts or refunding the purchase price despite numerous requests for these remedies 20 from customers with defective printers. 21 108. 101. Ferranti, Martinho, and the members of Subclass A provided HP with 22 timely notice of its breach of warranty. HP was also on notice of the Defect from the complaints 23 and service requests it received, internet message boards and support forums maintained by HP, 24 including www8.hp.com/us/en/supportforums.html, and from published product reviews. 25 102. As a direct and proximate result of HP’s breach of warranty, Ferranti, Martinho, 26 and each of the members of Subclass A have suffered damages and continue to suffer damages, 27 including economic damages at the point of sale or lease, i.e., thedifference between the value 28 of the HP Wireless Printers as promised and the value of theAs a direct and proximate result of Gibson, Dunn & Crutcher LLP 32 Exhibit D, Page 32 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page56 of 60 1 HP’s breach of warranty, Ferranti, Martinho, and each of the members of Subclass A have suffered 2 damages and continue to suffer damages, including economic damages at the point of sale or lease, 3 i.e., the difference between the value of the HP Wireless Printers as promised and the value of the 4 printers as delivered. Additionally, Ferranti, Martinho, and the members of Subclass A either have 5 incurred or will incur economic damages at the point of repair in the form of the cost of repair 6 and/or the cost of purchasing a nondefective printer to replace the HP Wireless Printer. 7 109. 103. Ferranti, Martinho, and the members of Subclass A are entitled to legal and 8 equitable relief against HP, including damages, consequential damages, specific performance, 9 rescission, attorneys’ fees, costs of suit, and other relief as appropriate. 10 SIXTHFIFTH CAUSE OF ACTION 11 (in the alternative, by Ferranti on behalf of Arizona Subclass for violation of the Arizona Consumer Fraud Act, A.R.S. § 44-1522) 12 13 110. 14 paragraphs. 15 111. 16 104. Ferranti incorporates by reference and realleges all of the preceding 105. Ferranti brings this cause of action in the alternative on behalf of himself and the Arizona Subclass. 17 112. 106. HP is a “person” within the meaning of A.R.S. § 44-1521(6). 18 113. 107. By failing to disclose and concealing the defective nature of the HP Wireless 19 Printers from Ferranti and the Arizona Subclass members in connection with its advertisement and 20 sale of the HP Wireless Printers, HP violated the Arizona Consumer Fraud Act, A.R.S. § 44-1522, 21 as it concealed, suppressed, and omitted material facts with intent that Ferranti and the Arizona 22 Subclass rely on this concealment, suppression, and omission. 23 114. 108. The concealed, suppressed, and omitted facts were material because a 24 reasonable person would consider them material in deciding whether to purchase an HP Wireless 25 Printer and/or how much to pay for an HP Wireless Printer. 26 27 115. 109. Ferranti and the Arizona Subclass members have been injured as a proximate result of HP’s Arizona Consumer Fraud Act violations because they relied on HP’s concealment, 28 Gibson, Dunn & Crutcher LLP 33 Exhibit D, Page 33 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page57 of 60 1 suppression, and omission in purchasing the HP Wireless Printers. HP’s concealment, suppression, 2 and omission in purchasing the HP Wireless Printers. 3 SEVENTHSIXTH CAUSE OF ACTION 4 (in the alternative, by Martinho on behalf of New York Subclass for violation of the New York General Business Law § 349) 5 6 116. 7 paragraphs. 8 117. 9 10 110. Martinho incorporates by reference and realleges all of the preceding 111. Martinho brings this cause of action in the alternative on behalf of himself and on behalf of the New York Subclass. 112. 118. By failing to disclose and concealing the defective nature of the HP 11 Wireless Printers from Martinho and the New York Subclass, HP knowingly engaged in a deceptive 12 act or practice in the conduct of business, trade, or commerce in the State of New York. 13 119. 113. HP’s failure to disclose and concealment of material facts regarding the 14 Defect in its HP Wireless Printers was consumer oriented because the HP Wireless Printers 15 were designed for and marketed to consumers. 16 120. 114. HP’s concealment of the Defect was materially misleading to a reasonable 17 consumer because it was likely to mislead reasonable consumers acting reasonably under the 18 circumstances. 19 121. 115. Martinho and the New York Subclass members have been injured by HP’s 20 violations of New York General Business Law § 349 because these violations caused them to 21 purchase products they otherwise would not have purchased and/or pay more for those products 22 than they otherwise would have paid. 23 122. 116. As a result of HP’s violations of New York General Business Law § 349, 24 Martinho and the New York Subclass members are entitled to damages, injunctive relief, and 25 attorneys’ fees. 26 27 28 DAMAGES AND OTHER RELIEF 117. HP’s acts and omissions were a proximate and producing cause of damages to Ferranti, Martinho, and each Class Member. Class Members have sustained HP’s acts and Gibson, Dunn & Crutcher LLP 34 Exhibit D, Page 34 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page58 of 60 1 omissions were a proximate and producing cause of damages to Ferranti, Martinho, and each Class 2 Member. Class Members have sustained financial losses associated with their purchase and/or 3 lease of a defective printer including repair costs, shipping charges, loss of use, diminished value, 4 and other losses. Ferranti and Martinho seek actual and punitive damages on behalf of the 5 Class and equitable relief as previously alleged in this Complaint. 6 7 8 9 123. 118. Ferranti, Martinho, and the Class Members seek their reasonable and necessary attorneys’ fees and costs incurred in connection with this suit. 119. 124. judgment interest, at the highest rates allowed by law, on the damages awarded. 10 11 12 Ferranti, Martinho, and the Class Members seek pre-judgment and post- CONDITIONS PRECEDENT 125. 120. All conditions precedent to recovery have been performed or have occurred. 13 14 15 16 PRAYER FOR RELIEF WHEREFORE, Ferranti and Martinho, on their own behalf and on behalf of the Class, pray for judgment ordering relief as follows: a. certifying the Class and/or the Arizona Subclass and New York Subclass and 17 Subclass A and appointing Ferranti, Martinho, and their counsel to represent the Class and 18 subclasses; 19 20 21 22 23 24 25 26 27 28 b. declaring that HP is financially responsible for notifying all Class Members about the Defect; c. enjoining HP from further deceptive distribution, sales, and lease practices with respect to the HP Wireless Printers; d. awarding Ferranti, Martinho, and the members of the Class actual damages, punitive damages, consequential damages, specific performance, and/or rescission; e. directing HP to repair and/or replace all defective HP Wireless Printers at no cost to the Class Members; f. declaring that HP must disgorge, for the benefit of the Class, all or part of the ill- gotten profits it received from the sale or lease of the HP Wireless Printers and from repairs of the Gibson, Dunn & Crutcher LLP 35 Exhibit D, Page 35 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page59 of 60 1 HP Wireless Printers that should have been covered under the Warranty, or make full restitution 2 to Ferranti, Martinho, and the Class; 3 f. 4 judgment interest; 5 h. awarding Plaintiffs and the Class Members pre-judgment and post- judgment interest; g. awarding Plaintiffs and the members of the Class reasonable attorneys’ fees 6 and costs of suit, including expert witness fees, pursuant to California Code of Civil Procedure 7 § 1021.5, the common fund theory, or any other applicable statute, theory, or contract; 8 9 10 h. granting leave to amend the Complaint to conform to the evidence produced at trial; i. awarding such other and further relief as this Court may deem just and proper. and 11 12 13 14 15 16 17 18 19 20 21 DEMAND FOR JURY TRIAL 126. 121. Pursuant to Federal Rule of Civil Procedure 38(b), Ferranti and Martinho demand a trial by jury on all claims so triable. Dated: November 8, 2013 September 29, 2014 Respectfully submitted, By: /s/ Michael A. CaddellCory S. Fein Michael A. Caddell (SBN 249469) [email protected] Cynthia B. Chapman (SBN 164471) cbc@caddellchapman Cory S. Fein (SBN 250758) CADDELL & CHAPMAN 1331 Lamar, Suite 1070 Houston, TX 77010-3027 Telephone: (713) 751-0400 Facsimile: (713) 751-0906 Attorneys for Plaintiffs Vincent Ferranti and Carlos Martinho 22 23 24 25 26 27 28 Gibson, Dunn & Crutcher LLP 36 Exhibit D, Page 36 of 37 Case5:13-cv-03847-EJD Document45-1 Filed10/13/14 Page60 of 60 2 Document comparison by Workshare Compare on Monday, September 29, 2014 2:28:30 PM Input: 3 Document 1 ID 4 Description 1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Document 2 ID Description Rendering set \cropped 2013-11-08 Amended Complaint against HewlettPackard Company.docx cropped 2013-11-08 Amended Complaint against HewlettPackard Company \cropped HP Ferranti Second Amended Class Action Complaint.docx cropped HP Ferranti Second Amended Class Action Complaint GDCv8Rendering Legend: Insertion Deletion Moved from Moved to Style change Format change Moved deletion Inserted cell Deleted cell Moved cell Split/Merged cell Padding cell Statistics: Count Insertions Deletions Moved from Moved to Style change Format changed Total changes 86 139 13 13 0 0 251 24 25 REDLINE.DOCX 26 27 28 Gibson, Dunn & Crutcher LLP Exhibit D, Page 37 of 37 Case5:13-cv-03847-EJD Document45-2 Filed10/13/14 Page1 of 2 1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 13 14 15 16 17 18 VINCENT FERRANTI, Individually and On Behalf of all Others Similarly Situated and the General Public, Plaintiff, v. HEWLETT-PACKARD COMPANY, Defendant. CASE NO. 13-CV-3847 [PROPOSED] ORDER GRANTING HEWLETT-PACKARD COMPANY’S MOTION TO DISMISS PLAINTIFFS’ SECOND AMENDED COMPLAINT Hearing Held: March 5, 2015 19 20 21 22 23 24 25 26 27 28 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Case No. 13-CV-3847 Case5:13-cv-03847-EJD Document45-2 Filed10/13/14 Page2 of 2 1 This matter is before the Court on Defendant Hewlett-Packard Company’s (“HP”) Motion to 2 Dismiss Plaintiff’s Second Amended Complaint pursuant to Rule 9(b) and 12(b)(6) of the Federal 3 Rules of Civil Procedure. After fully considering the briefs and papers pertaining to this matter, and 4 hearing oral argument on this matter, this Court holds that Plaintiff’s Second Amended Complaint 5 and each of the causes of action set forth therein fail to state a claim upon which relief can be granted. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Defendant HP’s Motion to Dismiss is GRANTED in its entirety; 8 2. Plaintiff’s Second Amended Complaint and each of the causes of action stated therein for violation of California’s Consumers Legal Remedies Act; violation of California 9 10 Business and Professions Code section 17200; breach of warranty under the 11 Magnuson-Moss Warranty Act; breach of HP’s express limited warranty; and 12 alternatively by Ferranti for violation of Arizona’s Consumer Fraud Act; and 13 alternatively by Martinho for violation of New York’s General Business Law; are 14 hereby DISMISSED with prejudice because amendment would be futile; and 15 3. The Clerk of the Court is to enter judgment in Defendant’s favor. 16 IT IS SO ORDERED. 17 DATED: __________________, 2015 _______________________________________ The Honorable Edward J. Davila UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 1 [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS Case No. 13-CV-3847