Safier v. WDC Compaint

�� COME NOW, Orin Safier, an individual, former resident of California and current resident of New Mexico, who brings this Class Action Complaint against Defendants, on behalf of himself, the general public, and those similarly situated for violations of sections 17200 and 17500 et seq., of the California Business and Professions Code, breach of contract, fraud, deceit and/or misrepresentation and violation of the California Consumers Legal Remedies Act.�

�� WHO ALLEGE AS FOLLOWS:

I. PARTIES

1. Orin Safier (�Plaintiff�) is, and at all times alleged in this Class Action Complaint was, an individual, and either a California or New Mexico resident, with his place of residence in Placitas, New Mexico.

2. Defendant Western Digital Corporation (�Western�) is a corporation duly incorporated under the laws of the state of Delaware, having its principal place of business in Lake Forest, California.

3. The true names and capacities of Defendants sued as Does 1 through 200 inclusive are unknown to Plaintiff, who therefore sue said Defendants by such fictitious names pursuant to section 474 of the California Code of Civil Procedure.� Plaintiff will seek leave of Court to amend this Class Action Complaint when said true names and capacities have been ascertained.� The Parties identified in paragraphs 2 through 3 of this Class Action Complaint are collectively referred to hereafter as �Defendants.�

4. At all times herein mentioned, each of the Defendants was the agent, servant, representative, officer, director, partner or employee of the other Defendants and, in doing the things herein alleged, was acting within the scope and course of his/her/its authority as such agent, servant, representative, officer, director, partner or employee, and with the permission and consent of each Defendant.

5. At all times herein mentioned, Defendants, and each of them, were members of, and engaged in, a joint venture, partnership and common enterprise, and acting within the course and scope of, and in pursuance of, said joint venture, partnership and common enterprise.

6. At all times herein mentioned, the acts and omissions of Defendants, and each of them, concurred and contributed to the various acts and omissions of each and all of the other Defendants in proximately causing the injuries and damages as herein alleged.

7. At all times herein mentioned, Defendants, and each of them, ratified each and every act or omission complained of herein. At all times herein mentioned, the Defendants, and each of them, aided and abetted the acts and omissions of each and all of the other Defendants in proximately causing the damages, and other injuries, as herein alleged.

II. STATEMENT OF FACTS AND ALLEGATIONS

a. Defendants Market, Advertise, Manufacture And/Or Sell Hard Disk Drive.

8. Defendants are engaged in the business of manufacturing, advertising, marketing and/or selling, throughout the world, hard disk drives (�HDDs�).

9. HDDs �are the data storage center of personal computers.� An HDD uses round, flat disks called platters, coated on both sides with a special media material designed to store information in the form of magnetic patterns. �The underlying principle of hard drives--the use of magnetism to store information--is very similar to that used in a tape or video recorder. �An HDD stores each bit of digital data as a magnetized spot on the surface of a disk.� The spot represents a 0 when magnetized in one orientation and a 1 when magnetized in the opposite orientation. �

10. The platters are mounted by cutting a hole in the center and stacking them onto a spindle. �The platters rotate at high speed, driven by a special spindle motor connected to the spindle. �Electromagnetic read/write devices called heads are mounted onto sliders and used to either record information onto the disk or read information from it. �

11. Each surface of each platter on the disk can hold billions of bits of data. ��These are organized into larger "chunks" for convenience, and to allow for easier and faster access to information.� Each platter has its information recorded in concentric circles called tracks. �Each track is further broken down into smaller pieces called sectors, each of which holds 512 bytes of information.� A byte is 8 bits.� A large-capacity HDD will typically contain several 3.5-inch platters and will use both sides of each platter for storage. �

12. HDDs are often pre-packaged or embedded in personal computers, for example, when they are purchased by consumers from manufacturers like Dell, Apple, IBM, Toshiba or Sony (�OEM Hard Drives�).�

13. When consumers assemble personal computers themselves or when they seek to add to their storage capacity, they purchase new HDDs.� These (after market) hard disk drives can either be internal or external.� Internal drives are connected directly to the mother board of a computer, typically by opening the computer, connecting the internal drive and closing the computer.� External hard drives are stand alone devices that are connected to personal computers, usually through a computer�s universal serial bus (USB) port or by some other interface such as a serial port.

14. For the purposes of this Class Action Complaint, internal and external hard disk drives, with the exception of OEM Hard Drives, will be collectively referred to as �hard drives,� hard disks� or �HDD(s),� unless otherwise stated or contextually inappropriate.

15. As set forth above, every HDD marketed, advertised, manufactured and/or sold by Defendants has a particular capacity for storing digital information.� This capacity is invariably represented, by Defendants, as a number of gigabytes or �GB�.

16. Defendants, for example, via both online and offline channels, market, advertise, sell and manufacture a number of HDDs including, without limitation, the 80GB WD800VE internal hard drive and the 120GB WD1200B011 external hard drive.

b. Defendants Knowingly and Deceptively Misrepresent Storage Capabilities Of Their HDDs, Which Deceives And Misleads Consumers.

17. In marketing, advertising and/or packaging their HDDs, Defendants misrepresent the size of the memory storage contained in the HDDs.�

18. For example, Defendants--via its website located at www.wdc.com and through online and offline distributors and retailers--markets, advertises and/or sells a number of HDDs including for example and without limitation the 80GB WD800VE and 120GB WD1200B011 external hard drive.�� Attached hereto as Exhibit 1 and incorporated herein as if set forth in full are true and correct copies of advertising, marketing or website materials disseminated by Defendants, which contain examples of the representations that Defendants makes to the general public about the HDDs it sells.

19. Defendants overstate the amount of memory available to the end user or consumer (i.e., they overstate the amount of memory which the end user or consumer can use to store his or her files, pictures, etc�.).� For example, Defendants manufacture, market, advertise and/or sell the 80GB WD800VE and 120GB WD1200B011. �In actuality, Defendant�s �80GB WD800VE� only has 79,971,254,272 bytes or approximately 74.4GB of usable memory.� Defendants� 120 GB WD1200B011 external hard drive only has 120,002,150,400 bytes or approximately 111GB of usable memory.� See the Windows property screens for those HDDs attached hereto as Exhibit 2.

20. Defendants overstate the storage capacity of the above-mentioned products, as well as all other HDDs manufactured, marketed, advertised and/or sold by them.

21. As is set forth in more detail below, Plaintiff alleges that one possible explanation for the overstated memory in HDDs is that Defendants intentionally, misleading and deceptively employ a method of determining memory size that is inconsistent with the binary standard on which all digital files are based.� There are, however, other possible explanations for the diminished accessible storage capacity in Defendants� HDDs of all of which are equally as misleading and deceptive.�

22. Other possible explanations or rationales for the diminished accessible storage capacity in Defendants� HDDs include disk partitioning and/or formatting, bad disk sectors, pre-installed software or internal operational data storage requirements, environmental operating conditions and/or idiosyncratic interoperability with particular operating systems.� There may be additional explanations or rationales for the diminished accessible storage capacity that are currently unknown to Plaintiff.� Regardless of the rationale or explanation, on all Defendants� HDDs, the end user or consumer is unfairly, misleadingly and deceptively provided with less accessible storage capacity than Defendants market, advertise or otherwise claim.

c. Plaintiff Was Misled And Deceived By Defendants.

23. In or about October of 2004, Plaintiff purchased an 80GB WD800VE hard drive from Defendant.� Plaintiff made the purchase from a local computer technician.� The packaging for the product stated that it contained �80GB.�� The package did not state the actual number of bytes nor does it state that the actual memory size may be less. �After purchasing the product, Plaintiff tested its actual memory size.� Plaintiff�s computer reported that the actual available memory of the �80GB� HDD was 74.4GB.�

24. The difference between the represented amount of storage capacity and the actual amount of storage capacity available to the Plaintiff is not insignificant, but rather approximately 7% of the total storage capacity on Plaintiff�s HDD.� Indeed, Plaintiff could have stored approximately 80 hours of MP3 music, 160 hours of WMA music, 5600 digital pictures or 36,700 copies of this Class Action Complaint in .doc format on a drive with a 5.6 GB capacity.[1]

d. Defendants� Method Of Determining Memory Size Is Inconsistent With The Binary Standard On Which All Digital Files Are Based.

i. The Terms �Byte,� �Kilobyte,� �Megabyte,� and �Gigabyte� Are Each Defined In Base-Two.

25. All digital files consist of a series of ones and zeros, which is known as �binary� information.� The term �binary� refers to the fact that each digit can have only one of two values�either one or zero.�

26. Each one or zero in a digital file is called a �bit.�� The word �bit� stands for �binary digit.��

27. Binary information is the standard, because microprocessors process data by passing it through a series of switches stored on silicon chips.� When the microprocessor reads a �one,� the switch flips from the �off� position to the �on� position or vice-versa.� When the microprocessor reads a �zero,� the switch stays as it was.� By passing data through millions of switches, the microprocessor processes the information.

28. The binary system used by a microprocessor is different from the system that humans use to process information.� People typically count in base-ten, also called the �decimal� system.� When doing addition, people count from 0 to 9 in the �ones� column, then 0 to 9 in the �tens� column, then 0 to 9 in the �hundreds� column.� Each column represents a factor of 10.� Thus 10 = 10¹, 100 = 10², 1000 = 10³, and so on.

29. In binary computing, a computer counts in base-two.� Each column goes only from 0 to 1.� Thus each column represents a factor of 2, such as 2¹, 2², 2³, 2⁴, 2⁵, and so on.�

30. While it may be easiest for humans to process information based on numbers in base-ten, it is most efficient for computers to process information based on numbers in base-two.

31. Except for theoretical prototypes, all computer/digital processors sold everywhere in the world use binary information.� These include personal computers, PDAs, digital cameras, cellular telephones, MP3 players and all other devices that use HDDs.

32. To harness the speed of binary or base-two computing, memory storage originally was designed in sizes that equaled an exponent of the number two.�

33. Every group of eight (2³) bits was called a �byte.��

34. Bytes were further grouped in exponents of two.� Every group of 2¹⁰ (or 1024) bytes was called a kilobyte or KB.� Every group of 2²⁰ (or 1,048,576) bytes was called a megabyte or MB.� Every group of 2³⁰ (or 1,073,741,824) bytes was called a gigabyte or GB.

35. In using this terminology, computer architects borrowed the prefixes �kilo,� �mega� and �giga� from the International System of Units (also known as the �metric system�) but changed the meanings.� While a kilometer (km) was 1000 (10³)meters and a kilogram (kg) was 1000 (10³) grams, a kilobyte (KB) was 1024 (or 2¹⁰) bytes.� Likewise, while a megaton (mton) was 1,000,000 (10⁶) tons, a megabyte (MB) was 1,048,576 (or 2²⁰) bytes.� And while a gigahertz (GHz) was 1,000,000,000 (10⁹)cycles per second, a gigabyte (GB) was 1,073,741,824 (2³⁰) bytes.�

36. Because the metric system did not include the unit �byte,� it did not define terms such as �megabyte� and �gigabyte.�[2]� The use of the prefixes �mega� or �giga� before �byte� does not make those terms governed by the metric system any more than it could be said that one is using the metric system by describing a location as �10 kiloyards� away or a volume as �750 milliquarts.�� Yard� and �quart� are (like �byte�) not metric measurements, so none of these terms became �metric� merely by adding the prefix such as �mega� or �giga.�� Similarly, the words �megaphone� and �megavitamin� are not �metric� terms (they do not literally mean 1 million phones or 1 million vitamins); rather the use of the prefix �mega� is understood to have a different meaning in those contexts because, among other things, �phone� and �vitamin� are not base terms in the metric system.

ii. Consumers Have Become Familiar With The Base-Two System In Counting Bytes.

37. The use of the base-two system, and particularly the terms kilobyte (KB), megabyte (MB) and gigabyte (GB) in conjunction with this system, have become familiar to consumers who use computers.� It is common, for example, to find a computer that has �256MB� or �512MB� of RAM, but it would be very unusual to see a computer with �250MB� or �500MB� of RAM.� The simple reason is that 256 and 512 are base-two numbers (256= 2⁸, 512=2⁹), whereas 250 and 500 are not.� 256 MB is the same as 2²⁸ bytes and 512 MB is the same as 2²⁹ bytes.� But there is no easy base-two conversion for 250MB or 500 MB.

38. Furthermore, computer users are presented with the base-two counting system whenever they look at the size of files stored on their hard disk drive or storage medium, whether they are using the Windows, Linux, Apple or any other operating systems.� For example, users of the Microsoft Windows operating system (who comprise more than 97% of all computer users) will see a list of files contained in a particular folder, showing the total size of the folder and the file size of each file as a number of �KB� or kilobytes.� If the user clicks on the �properties� for a particular file, the user will then see the same size given in �MB� or megabytes and �bytes.�� Each of these numbers is computed using the base-two system.� For example, if a particular file appears in the list as �2,088 KB,� the properties screen will show �2.03 MB (2,138,112 bytes).�� The reason is that 2,138,112 bytes divided by 1024 (2¹⁰) equals 2,088 KB, and 2,088 kilobytes divided by 1024 equals 2.03 MB.� If the number had been computed in base-ten instead of base-two, then 2,138,122 bytes would be shown as 2,138 KB instead of 2,088 KB, and as 2.14MB instead of 2.03MB.�

39. Beyond just becoming accustomed to the base-two system in the context of computers and related applications, consumers are ultimately dependent on their particular operating systems� calculation and representation of file size.� Indeed, for the average consumer, there is no other way to gather such information.� So, for example, if a consumer wants to transfer a particular picture file to a CD or email a file to a friend, before doing so, consumers frequently check the file size in their operating system to make certain that it will fit on the CD or is not too large for it to be sent or downloaded by a particular email recipient or account.� Additionally, consumers frequently check the space or storage capacity remaining on their HDDs.� In short, the average consumers� understanding and measurement of storage capacity and file size is entirely predicated on the base-two system that is, and has always been, used by operating systems such as Windows, Mac or Linux.

iii. The Binary Representation Of File Sizes Capacity Are Especially Important To Someone Who Wants To Use A Hard Disk Drive.

40. �As set forth above, all HDDs manufactured and sold by Defendants are designed to work in conjunction with personal computers.�

41. Consumers purchase a particular HDD only after they have made a threshold decision regarding their desired memory size.� HDDs are priced in proportion to their storage capacity.�

42. Only after purchasing a HDD will a consumer learn that the actual capacity of that HDD is less than claimed, and that therefore the card or device can hold less data than anticipated based on their experience and understanding of computer storage and file size.�

e. Defendants Know That Their Conduct Is Misleading.

43. Defendants have long known that the public was likely to be confused by their overstatement of the number of �gigabytes� or �GB� of storage in their HDDs.� Defendants knew that these terms had originally been adopted in the computer industry as base-two numbers, and that they were still in widespread use as base-two numbers.�

i. International Organizations Recognized The Confusion

44. Defendants gained further knowledge about confusion caused by the definitions of kilobyte, megabyte and gigabyte by participating in or being informed about the proceedings of the International Electrotechnical Commission (IEC) and/or the Institute for Electrical and Electronics Engineers (IEEE).

45. The IEC and IEEE are organizations for worldwide standardization in electronics and electrotechnology.� In December 1998, the IEC recognized the confusion as to the meaning of terms like �kilobyte� and �megabyte� and attempted to address it by approving an international standard for prefixes for binary multiples for use in the fields of data storage, processing and transmission.� Over the next four years, the IEEE addressed the same confusion and attempted to address it by approving a draft standard, and later a trial-use standard, to the same effect.

46. Some Defendants are members of the IEC and/or the IEEE and/or participated in the discussions leading up to the adoption of these standards.�

47. The standards recommended by the IEC and the trial-use standards recommended by the IEEE provide that the measurement 2¹⁰ bytes, which had previously been known as a kilobyte, should henceforth be called �kibibyte.�� Similarly, the measurement 2²⁰ bytes, which had previously been known as a megabyte, should henceforth be called a �mebibyte.�� Likewise, the measurement 2³⁰ bytes, which had previously been known as a gigabyte, should henceforth be called a �gibibyte.�

48. The IEC standard and IEEE trial-use standards also provided that the terms kilobyte, megabyte, and gigabyte should be redefined to mean 10³, 10⁶and 10⁹bytes, respectively, to bring the prefixes �kilo,� �mega,� and �giga� before �byte� in line with the SI standard definitions for those prefixes, as used in words like kilogram or kilometer or megaton.

ii. Defendants Have Not Adopted The Standards

49. The IEC standard and IEEE trial-use standard have never been uniformly adopted by Defendants.� Instead, the base-two computations are still widely used throughout the industry including by Defendants themselves, even in the context of advertising, marketing and selling HDDs.�

50. In addition, Microsoft Corporation continues to compute file size using the binary standard.� Microsoft Corporation is by far the world�s largest computer-related company; it makes an operating system used by more than 97% of computer users as well as many leading applications programs.� In the technical support section of Microsoft�s website, it explains that �[t]o convert [from kilobytes] to megabytes, divide by 1024 . . . .� There are 1024 bytes in a kilobyte, not 1000.�� See http://support.microsoft.com/default.aspx?scid=
http://support.microsoft.com:80/support/kb/articles/Q121/8/39.asp&NoWebContent=1, a true and correct copy of which is attached hereto as Exhibit 3.

51. In computing the size of RAM, computer and data storage manufacturers and distributors, including Defendants, always use the base-two counting system instead of the base-ten counting system.� One megabyte of RAM is always 2²⁰ bytes (1,048,576 bytes), not 10⁶ bytes (1,000,000 bytes).� One gigabyte of RAM is always 2³⁰ bytes ( bytes), (1,073,741,824 bytes), not 10⁹ bytes (1,000,000,000 bytes).

52. ��At the same time, in marketing HDDs, Defendants state the size in gigabytes that do not provide the full number of gigabytes that would be required by the base-two system.� Defendants do not inform consumers that two different standards are being used, nor do they say that a particular number of gigabytes of memory is fewer bytes than the same number of number of megabytes or gigabytes of RAM or blank media.

53. In general parlance about computers and file storage, the terms �kilobyte,� �megabyte� and �gigabyte� are still defined primarily as base-two numbers, not base-ten numbers.� For example, the Free On-line Dictionary of Computing (http://foldoc.doc.ic.ac.uk/foldoc/index.html) defines �megabyte� as �(MB, colloquially �meg�) 2^20 = 1,048,576 bytes = 1024 kilobytes.� 1024 megabytes are one gigabyte.�� American Heritage Dictionary gives the primary definition of megabyte� as �1.� A unit of computer memory or data storage capacity equal to 1,048,576 (2²⁰) bytes.�� The website www.dictionary.com provides the same primary definition.

54. The industry reaction to the IEC standards�which has been largely to ignore them�is perhaps best reflected by the response of a spokesman for Dell Computer Company.� When told of the standards, he replied �Are you joking with me?� See Michael Stroh, �Have a kibibyte with your PERSONAL COMPUTER,� Baltimore Sun. March 15, 1999, p.1C.�

55. Defendants have not engaged in any systematic efforts to clarify their definitions of the terms megabyte and gigabyte or to educate consumers about the IEC standards.� Rather, Defendants systematic efforts have been to mislead and deceive consumers into thinking that HDD memory capacities are great than they actually are.

56. Defendants have also not provided consumers with any disclaimer or explanation that intend to use the terms �gigabyte� or �GB� to mean something less than 1,073,741,824 bytes in their HDDs.�

f. Defendants� Conduct Is Intentional And Leaves Consumers Unprotected.

57. Consumers cannot know the actual number of bytes of storage capacity in the HDD products sold by Defendants unless they purchase the products, unpack them, connect them to their personal computers, and then view the �properties� of the device on their screen.

g. Defendants� Misleading Conduct Leads To Significant Losses By Consumers Nationwide And Harms Competitors.
�

58. As set forth above, Defendants overstate the storage capacity of their HDDs.

59. If Defendants disclosed the true storage size of their HDDs, the HDDs would not have been purchased, or if purchased, the purchase prices would have been lower.� The amounts overpaid to each Defendant can be computed by, among other things, comparing the prices that Defendants charges for different sized HDDs, which reflects their incremental price for each additional unit of memory storage.

60. Defendants� conduct unfairly disadvantages those competitors who more accurately disclose the number of bytes, kilobytes, megabytes and/or gigabytes in their HDDs.� For example, in its website marketing of its HDDs with �250GB� of storage, LaCie USA, Inc., on of Defendants� competitors, provides the following disclaimer: �1 gigabyte = 1,000,000,000 bytes. Once formatted, the actual available storage capacity varies depending on operating environment.�� A true and correct copy of that webpage is attached hereto as Exhibit 4.�

61. Additionally, virtually all computer manufacturers that sell OEM Hard Drives include a disclaimer regarding storage capacity.� For example, Dell Computer Corporation, states, �[f]or hard drives, GB means 1 billion bytes; actual capacity varies with preloaded material and operating environment and will be less.�� Hewlett Packard states, �1GB = one billion bytes when referring to hard drive capacity. Actual formatted capacity is less.� And, IBM states, �[f]or hard drive, GB=billion bytes. Accessible capacity is less; up to 4GB is service partition.�� True and correct copies of those webpages are attached hereto as Exhibit 5.�

62. The lack of similar disclosures from Defendants makes their conduct even more misleading, in that it causes consumers to believe that a 250GB sold by LaCie USA, Inc. has less �actual usable capacity� than a 250GB device sold by Defendants.�

63. In fact, virtually all HDD manufacturers, including Defendants� closest competitors, iOmega Corporation and Maxtor Corporation, include such disclaimers on their websites and packaging.� True and correct copies of those webpages containing disclaimers are attached hereto as Exhibit 6.

64. The absence of such a disclosure on Defendants� marketing, advertisements, websites and/or packaging further deceives, misleads and confuses consumers.�

65. Defendants intentionally target their false, deceptive and misleading advertising and marketing materials to users of the personal computers by advertising on major Internet sites and by posting marketing materials at their own Internet sites, in their stores and in print, television and radio media nationwide.

III. JURISDICTION AND VENUE

66. This action is brought by Plaintiff pursuant, inter alia, to the California Business and Professions Code, Sections 17200 et. seq.� Plaintiff and Defendants are �persons� within the meaning of the California Business and Professions Code, Sections 17201.� Plaintiff brings this action by, for and on behalf of the general public and the public interest of the State of California.

67. Plaintiff is and at all times relevant to this action has been a resident of the city of San Carlos, California and/or Placitas, New Mexico.

68. Defendants have solicited more potential customers for HDDs and sold more HDDs in California than in any other state in the United States.

69. Defendants have their principal places of business in California.�

70. Defendants are citizens of California.�

71. The injuries, damages and/or harm upon which this action is based, occurred or arose out of activities engaged in by Defendants within, and affecting, the State of California.�

72. Defendants have engaged, and continue to engage, in substantial and continuous business practices in the State of California.�

73. As such, Plaintiff alleges that jurisdiction and venue is proper in this Court.

IV. CLASS ALLEGATIONS

74. Plaintiff brings this action against Defendants on behalf of himself and all others similarly situated, as a class action pursuant to section 382 of the California Code of Civil Procedure.� The class or classes that Plaintiff seek to represent are composed of and defined as follows:

All persons who, or at any time within the four years preceding the filing of this Class Action Complaint, purchased any HDD that was manufactured, distributed marketed or sold by Defendants.

For purposes of this Class Action Complaint, phrase �Class Members� shall refer collectively to all members of these classes, including the named Plaintiff.

75. This action has been brought and may properly be maintained as a class action against the Defendants pursuant to the provisions of California Code of Civil Procedure section 382 because there is a well-defined community of interest in the litigation and the proposed class is easily ascertainable:

76. Numerosity: Plaintiff does not know the exact size of the class, but it is estimated that the class is composed of more than 10,000 persons.� Furthermore, even if subclasses need to be created for the consumers of one or more product(s) or one or more Defendant(s), it is estimated that each subclass would have thousands of members.� The persons in the class are so numerous that the joinder of all such persons is impracticable and the disposition of their claims in a class action rather than in individual actions will benefit the parties and the courts.

77. Common Questions Predominate: This action involves common questions of law and fact to the potential class because each Class Member�s claim derives from the same allegedly false, misleading, deceptive and/or unfair representations, in advertising and labeling of HDDs, that those products have more storage capacity than they actually do.� The common questions of law and fact involved predominate over questions that affect only one product, one Defendant, or individual Class Members.� Thus, proof of a common or single set of facts will establish the right of each member of the class to recover.� Among the questions of law and fact common to the class are:

a. Whether Defendants� advertising and labeling of their HDDs is false, deceptive, misleading and/or unfair.�

b. Whether Defendants breached their contract with the Plaintiff and those similarly situated.

c. Whether Defendant violated the California Consumers Legal Remedies Act.

d. The scope of injunctive relief that should be imposed against Defendants to prevent such conduct in the future.�

78. Typicality: Plaintiff�s claims are typical of the class because he purchased an HDD manufactured by Defendants in a typical retail consumer process, and that product was advertised, labeled, and operated in substantially the same fashion as those purchased by all Class Members.� Defendants� advertising and marketing materials for HDDs in the United States contain substantially the same misrepresentations described herein irrespective of the state in which they were distributed.� Thus, Plaintiff and Class Members sustained the same injuries and damages arising out of Defendants� conduct in violation of California law and other similar statutes nationwide.� The injuries and damages of each Class Member were caused directly by Defendants� wrongful conduct in violation of law as alleged herein.�

79. Adequacy: Plaintiff will fairly and adequately protect the interests of all Class Members because it is in his best interests to prosecute the claims alleged herein to obtain full compensation due to him for the illegal conduct of which he complains.� Plaintiff also has no interests that conflict with or are antagonistic to the interests of Class Members.� Plaintiff has retained highly competent and experienced class action attorneys to represent his interests and that of the class.� No conflict of interest exists between Plaintiff and Class Members hereby, because all questions of law and fact regarding liability of Defendants are common to Class Members and predominate over any individual issues that may exist, such that by prevailing on their own claim, Plaintiff necessarily will establish Defendants� liability to all Class Members.� Plaintiff and his counsel have the necessary financial resources to adequately and vigorously litigate this class action, and Plaintiff and counsel are aware of their fiduciary responsibilities to the Class Members and are determined to diligently discharge those duties by vigorously seeking the maximum possible recovery for Class Members.�

80. Superiority: There is no plain, speedy, or adequate remedy other than by maintenance of this class action.� The prosecution of individual remedies by members of the class will tend to establish inconsistent standards of conduct for the Defendants and result in the impairment of Class Members� rights and the disposition of their interests through actions to which they were not parties.� Class action treatment will permit a large number of similarly situated persons to prosecute their common claims in a single forum simultaneously, efficiently, and without the unnecessary duplication of effort and expense that numerous individual actions world engender.� Furthermore, as the damages suffered by each individual member of the class may be relatively small, the expenses and burden of individual litigation would make it difficult or impossible for individual members of the class to redress the wrongs done to them, while an important public interest will be served by addressing the matter as a class action.

81. Nexus to California.� All of the Defendants� principal places of business are in California.� Plaintiff is also informed and believe and thereupon alleges that the majority, if not all, of the business practices and marketing described above were designed in California and implemented here and/or nationwide at the direction of persons employed by Defendants in California.� The State of California has a special interest in regulating the affairs of corporations that are based here and persons who live here.� The advertising and marketing materials distributed throughout the United States by Defendants are substantially identical with respect to the misrepresentations complained of herein.� Accordingly, there is a substantial nexus between Defendants� unlawful behavior and California such that the California courts should take cognizance of this action on behalf of a class of individuals who reside throughout the United States.

82. Plaintiff is unaware of any difficulties that are likely to be encountered in the management of this action that would preclude its maintenance as a class action.�

V. PRIVATE ATTORNEY GENERAL ALLEGATIONS

83. Plaintiff brings this action against all Defendants on behalf of himself, those similarly situated, and the general public, under Business and Professions Code sections 17200 et seq., seeking equitable and injunctive relief for the unfair trade practices described herein.

VI. ALLEGATIONS RELATING TO THE STATUTE OF LIMITATIONS

84. The statutes of limitations applicable to the causes of actions stated herein have been tolled since the filing of Lazar et al v. Seagate Technology LLC, San Francisco Superior Court Case No. CGC 05-439700, on March 22, 2005.�

VII. BASIS FOR ALLEGATIONS

85. All prior paragraphs of this Class Action Complaint are alleged on the basis of information and belief, with the exception of paragraphs 1 and 67.

VIII. CAUSES OF ACTION

PLAINTIFF�S FIRST CAUSE OF ACTION

(False, Deceptive and/or Misleading Advertising, Business and Professions Code � 17500, et seq.)

86. Plaintiff realleges and incorporates by reference all prior paragraphs of this Class Action Complaint as if set forth herein.

87. In or around October 2004, Plaintiff lost money or property when he purchased an HDD, manufactured by Defendants, whose available storage capacity was less than Defendants had represented.

88. Beginning at an exact date unknown to Plaintiff, but within three (3) years preceding the filing of this Class Action Complaint, Defendants have made, and continue to make, untrue, false, deceptive or misleading statements and material omissions in connection with the advertising, sale and marketing of their HDDs throughout the nation, State of California and the City of San Francisco.

89. Defendants have made, and continue to make untrue, false, deceptive or misleading statements and misrepresentations, misstatements and material omissions regarding the storage capacity of their HDDs.� Namely, Defendants have made, and continue to make, misrepresentations (of material omission and commission) that those HDDs have files storage or memory capacities approximately 5% to 7% larger than their actual capacities.

90. At all times mentioned herein, Defendants knew, or by the exercise of reasonable care, should have known that these and other statements and omissions were false, deceptive, untrue or misleading.

91. By engaging in the foregoing acts and practices with the intent to induce Plaintiff, Class Members and members of the general public to purchase their HDDs, in lieu of other products including those of their competitors, Defendants have committed, and continue to commit, false, deceptive and misleading advertising, as defined by the California Business and Professions Code, section 17500, et seq.�

92. Plaintiff, Class Members and other members of the general public are in current and ongoing need of protection from the untrue, false, deceptive or misleading advertisements of Defendants.

93. The aforementioned practices, which Defendants have used, and continue to use, to their significant financial gain, also constitute unlawful competition and provide an unlawful advantage over Defendants� competitors as well as injury in fact to the general public and the loss of money and property to Plaintiff, Class Members and the general public.

94. Plaintiff is informed and believes, and thereupon alleges, that the general public is likely to be deceived by Defendants� practices set forth above.

95. Plaintiff seeks, on behalf of the general public and those similarly situated, full restitution and disgorgement of monies, as necessary and according to proof, to restore any and all monies acquired by Defendants by means of the unfair and/or deceptive trade practices complained of herein.

96. Plaintiff seeks, on behalf of the general public and those similarly situated, an injunction to prohibit Defendants from continuing to engage in the unfair trade practices complained of herein. The restitution includes all amounts, paid and unpaid, obtained by Defendants using the tactics described herein, including interest thereon. The acts complained of herein occurred, at least in part, within three (3) years preceding the filing of this Class Action Complaint.

97. Plaintiff, Class Members and other members of the general public are further entitled to and do seek both a declaration that the above-described trade practices are unfair, unlawful and/or fraudulent and injunctive relief restraining Defendants from engaging in any of such deceptive, unfair and/or unlawful trade practices in the future. Such misconduct by Defendants, unless and until enjoined and restrained by order of this Court, will continue to cause injury in fact to the general public and the loss of money and property in that the Defendants will continue to violate these California laws, unless specifically ordered to comply with the same. This expectation of future violations will require current and future customers to repeatedly and continuously seek legal redress in order to recoup monies paid to Defendants to which Defendants are not entitled. Plaintiff, Class Members and other members of the general public have no other adequate remedy at law to ensure future compliance with the California Business and Professions Code alleged to have been violated herein.

98. As a direct and proximate result of such actions, Plaintiff, Class Members and other members of the general public have suffered, and continue to suffer, injury in fact and have lost money and or property as a result of such deceptive, unfair and/or unlawful trade practices and unfair competition in an amount which will be proven at trial, but which is in excess of the jurisdictional minimum of this Court.

99. As a direct and proximate result of such actions, Defendants have enjoyed, and continue to enjoy, significant financial gain in an amount which will be proven at trial, but which is in excess of the jurisdictional minimum of this Court.

PLAINTIFF�S SECOND CAUSE OF ACTION
�(Unfair, Unlawful and Deceptive Trade Practices, Business and Professions Code � 17200, et seq.)

100. Plaintiff realleges and incorporates by reference all prior paragraphs of this Class Action Complaint as if set forth herein.

101. Beginning at an exact date unknown to Plaintiff, but within four (4) years preceding the filing of this Class Action Complaint, and at all times mentioned herein, Defendants have engaged, and continue to engage, in unfair, unlawful and deceptive trade practices nationwide by engaging in the misrepresentation, false, misleading and/or deceptive advertising and marketing outlined above, in particular by falsely, deceptively and/or unfairly claiming that their HDDs have, and had, storage capacities larger than they actually do and did.�

102. Defendants knowingly and intentionally misrepresent the storage capacity of their HDDs.�

103. Defendants engage in these unfair practices to increase their profits on the HDDs that they sell as well as to force consumers to purchase memory storage upgrades or new HDDs at an additional charge.� As such, Defendants have engaged in unlawful trade practices, as defined and prohibited by section 17200, et seq. of the California Business and Professions Code.

104. Defendants purposely fail to disclose, in their advertising and marketing, the way in which they determine the storage capacity of their HDDs or that such storage may actually be less.

105. The aforementioned practices, which Defendants have used, and continue to use, to their significant financial gain, also constitute unlawful competition and provide an unlawful advantage over Defendants� competitors as well as injury in fact to the general public and the loss of money and property Plaintiff, those similarly situated and to the general public.

106. Plaintiff is informed and believes, and thereupon alleges, that the general public is likely to be deceived by Defendants� practices set forth above.

107. Plaintiff seeks, on behalf of the general public and those similarly situated, full restitution and disgorgement of monies, as necessary and according to proof, to restore any and all monies acquired by Defendants by means of the unfair and/or deceptive trade practices complained of herein.

108. Plaintiff seeks, on behalf of the general public and those similarly situated, an injunction to prohibit Defendants from continuing to engage in the unfair trade practices complained of herein. The restitution includes all amounts, paid and unpaid, obtained by Defendants using the tactics described herein, including interest thereon. The acts complained of herein occurred, at least in part, within four (4) years preceding the filing of the Complaint in this Action and/or this Class Action Complaint.

109. Plaintiff, Class Members and other members of the general public are further entitled to and do seek both a declaration that the above-described trade practices are unfair, unlawful and/or fraudulent and injunctive relief restraining Defendants from engaging in any of such deceptive, unfair and/or unlawful trade practices in the future. Such misconduct by Defendants, unless and until enjoined and restrained by order of this Court, will continue to cause injury in fact to the general public and the loss of money and property in that the Defendants will continue to violate these California laws, unless specifically ordered to comply with the same. This expectation of future violations will require current and future customers to repeatedly and continuously seek legal redress in order to recoup monies paid to Defendants to which Defendants are not entitled. Plaintiff, Class Members and other members of the general public have no other adequate remedy at law to ensure future compliance with the California Business and Professions Code alleged to have been violated herein.

110. As a direct and proximate result of such actions, Plaintiff, Class Members and other members of the general public have suffered, and continue to suffer, injury in fact and have lost money and or property as a result of such deceptive, unfair and/or unlawful trade practices and unfair competition in an amount which will be proven at trial, but which is in excess of the jurisdictional minimum of this Court.

111. As a direct and proximate result of such actions, Defendants have enjoyed, and continue to enjoy, significant financial gain in an amount which will be proven at trial, but which is in excess of the jurisdictional minimum of this Court.

PLAINTIFF�S THIRD CAUSE OF ACTION

(Breach of Written, Oral and/or Implied In Fact Contract)

112. Plaintiff realleges and incorporates by this reference all prior paragraphs of this Class Action Complaint as if set forth herein.

113. On or about October of 2004, Plaintiff entered into a written, oral and/or implied in fact contract or agreement in which Plaintiff agreed to purchase and Defendants agreed to sell to Plaintiff WD800VE HDD having 80GB of storage capacity.� Similarly situated individuals nationwide have entered into substantially similar contracts with Defendants before and since that time.� The operative terms of the contract or agreement between Defendants and Plaintiff were that Defendants would provide, and Plaintiff would purchase, an HDD containing 80GB of storage capacity. The terms were stated in writing on the package of the product and in associated marketing materials for it including Defendants� website. The term can also be implied from the conduct of Plaintiff, those similarly situated, and Defendants.

114. As a direct and proximate result of the breaches, Plaintiff, and those similarly situated, have suffered, and continues to suffer, damages in an amount which will be proven at trial, but which are in excess of the jurisdictional minimum of this Court.

PLAINTIFF�S FOURTH CAUSE OF ACTION

�(Fraud, Deceit and/or Misrepresentation)

115. Plaintiff realleges and incorporates by reference paragraphs all prior paragraphs of this Class Action Complaint as if set forth herein.

116. On or about October 2004 and on numerous occasions since and prior to those occasions, Defendants have made misrepresentations regarding the file storage capacity of their HDDs as stated herein.�

117. Defendants made such misrepresentations with full knowledge that such statements were, and are, in fact, fraudulent, misrepresentative, false and/or deceptive.

118. In addition to the affirmative misrepresentation and willful deception described in the preceding paragraph, Defendants have intentionally deceived, and continue to deceive, Plaintiff and Class Members in order to profit as well as to compel them to purchase additional HDDs sold by them.

119. These aforementioned misrepresentations or fraudulent, deceptive, or false statements and omissions concerned material facts that were essential to the analysis undertaken by Plaintiff and Class Members regarding whether to purchase a HDD.�

120. Plaintiff and Class Members would have acted differently had he and they not been misled, but instead been informed of the true storage capacities of the HDD that he and they purchased.

121. Defendants each had a duty, including a fiduciary duty, to inform Plaintiff and Class Members of the true storage capacity and/or Defendants� method of calculating the storage capacity of the HDDs that they were offering for sale.� In not so informing Plaintiff and Class Members, Defendants breached these duties.� Defendants also gained financially from, and as a result of, their breaches.

122. By and through such fraudulent statements, misrepresentations and/or omissions, Defendants intended to induce Plaintiff and Class Members to alter their position to their injury.

123. Plaintiff and Class Members justifiably and reasonably relied on Defendants� misrepresentations, and, as such, were damaged by Defendants.�

124. As a direct and proximate result of Defendants� misrepresentations, Plaintiff and Class Members at a minimum have suffered damages in an amount which at least equals the value of the missing storage capacity, as described above.� The exact amount of this amount will be proven at trial, but is in excess of the jurisdictional minimum of this Court.

PLAINTIFF�S FIFTH CAUSE OF ACTION

�(Violation of the Consumers Legal Remedies Act, California Civil Code � 1750, et seq.)

125. Plaintiff realleges and incorporate by reference all prior paragraphs of this Class Action Complaint as set forth herein.

126. This cause of action is brought pursuant to the California Consumers Legal Remedies Act, California Civil Code � 1750, et seq. (�CLRA�).

127. Defendants� actions, representations and conduct has violated, and continue to violate the CLRA, because they extend to transactions that are intended to result, or which have resulted, in the sale or lease of goods or services to consumers.�

128. Plaintiff and other Class Members are �consumers� as that term is defined by the CLRA in California Civil Code � 1761(d).

129. The HDDs that Plaintiff (and others similarly situated Class Members) purchased, and now own, from Defendants were �goods� within the meaning of California Civil Code � 1761(a).��

130. By engaging in the actions, representations and conduct set forth in this Class Action Complaint, Defendants have violated, and continue to violate, � 1770(a)(5) of the CLRA by �[r]epresenting that [their] goods have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have.�� Additionally, Defendants have violated the CLRA by representing that their products are of a particular standard, quality, or grade that they are not, and by advertising, as set forth above, their products with intent to sell them with a certain accessible storage capacity when such products do not provide that storage capacity to the end user or consumer.� (See California Civil Code �� 1770(a)(5) and (7), respectively.)

131. Pursuant to California Civil Code � 1780(a)(3), Plaintiff, on behalf of himself and similarly situated Class Members, seek compensatory damages, punitive damages and restitution of any ill-gotten gains due to Defendants� acts and practices.� Plaintiff also requests that this Court award them his costs and reasonable attorneys� fees pursuant to California Civil Code � 1780(d).�

132. Plaintiff further request that this Court enjoin Defendants from continuing to employ the unlawful methods, acts and practices alleged herein pursuant to California Civil Code � 1780(a)(2).� If Defendants are not restrained from engaging in these types of practices in the future, Plaintiff, Class Members and other members of the general public will continue to suffer harm.

133. On March 22, 2005, pursuant to California Civil Code � 1782(a), Plaintiff served Defendants with notice regarding their unlawful practices and a demand to correct, repair, replace or otherwise rectify such unlawful practices.� Defendants did not take corrective action.

134. Pursuant to California Civil Code � 1780(a)(3), Plaintiff, on behalf of himself and similarly situated Class Members, seeks compensatory damages, punitive damages and restitution of any ill-gotten gains due to Defendants� acts and practices.� Plaintiff also requests that this Court award him his costs and reasonable attorneys� fees pursuant to California Civil Code � 1780(d).� Plaintiff further requests that this Court enjoin Defendants from continuing to employ the unlawful methods, acts and practices alleged herein pursuant to California Civil Code � 1780(a)(2).� If Defendants are not restrained from engaging in these types of practices in the future, Plaintiff, Class Members and other members of the general public will continue to suffer harm.

IX. PRAYER FOR RELIEF

�� WHEREFORE, Plaintiff prays for judgment as follows:

�� A.�� On Causes of Action Number 1 and 2 against Defendants:

1. For restitution and disgorgement pursuant to, without limitation, the California Business & Professions Code �� 17200, et seq. and 17500, et seq; and

2. For injunctive relief pursuant to, without limitation, the California Business & Professions Code �� 17200, et seq and 17500, et seq;

B.�� On Cause of Action Number 3 against Defendants:� An award of compensatory damages, the amount of which is to be determined at trial;

C.�� On Cause of Action Number 4 against Defendants:

1. An award of compensatory damages, the amount of which is to be determined at trial; and

2. For punitive damages according to proof;

D.�� On Cause of Action Number 5 against Defendants:

1.�� For the greater of actual or compensatory damages according to proof or $1000 pursuant to California Civil Code section 1780; and

2.�� For restitution and injunctive relief pursuant to California Civil Code section 1780; and

3.�� For punitive damages according to proof pursuant to California Civil Code section 1780; and

4.�� For any Class Member who is a senior citizen or a disabled person, an award of five thousand dollars ($5,000);

E.�� On All causes of action against all Defendants:��

1.�� For reasonable attorneys� fees according to proof pursuant to, without limitation, the California Code of Civil Procedure � 1021.5; and

2.�� For costs of suit incurred; and

3. For such further relief as this Court may deem just and proper.

Dated:� March 29, 2006

�� Respectfully Submitted,

�� ADAM GUTRIDE��

�� SETH A. SAFIER

�� _______________________

�� Seth A. Safier, Esq.

�� Attorneys for Plaintiff, Orin Safier

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