case 2:13-cv-06329-ldw-akt document district court york … · 2013-11-21 · case...

Case 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 1

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

Matt Dash, Individually And On Behalf of 6v tea 6329All Others Similarly Situated,

Plaintiff, CLASS ACTIONCOMPLAINT-against-Jury Trial Demanded

SEAGATE TECHNOLOGY (US) HOLDINGS, INC.,:

Defendant.X

Plaintiff Matt Dash, for his class action complaint on behalf of himself and all others

similarly situated, upon personal knowledge as to the facts pertaining to him and upon information

and belief as to all other matters, based on investigation of his counsel, against defendant Seagate

Technology (US) Holdings, Inc. ("Seagate")

NATURE OF ACTION

1. This is a consumer class action for damages and injunctive relief arising from

Defendant's deceptive and unlawful conduct in marketing and selling ofexternal hard drives with

the Thunderbolt I/0 interface (the "Thunderbolt drives" or "Products")

2. Defendant states on the packaging of its Thunderbolt drives, on it company web page,

and elsewhere, of the "shocking speed" performance of its Thunderbolt drives.

3. Defendant's Thunderbolt drives, however, do not (and at the present time cannot)

reach these touted speeds.

4. Defendant's Thunderbolt drives sell at a premium price to consumers based on the

claimed improved interface speed over other "slower" interfaces such as Universal Serial Bus Hi-

Speed ("USB 2").

ease 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 2

5. That claimed interface speed, advertised and touted by Defendant for their

Thunderbolt drives, as sold, is impossible to attain. It is indeed impossible for ANY existing hard

drive to take full advantage of the claimed Thunderbolt speed.

6. Defendant continues to market and sell their Thunderbolt drives fraudulently and at a

premium to other hard drives capable of the same actual transfer speeds.

PLAINTIFF

7. PlaintiffMatt Dash lives in Port Washington, NY and is a citizen ofthe United States.

8. Plaintiffpurchased a LaCie "Rugged Thunderbolt Series" 1TB Orange External Hard

Drive [Model number 9000294] 5400 RPM with a Thunderbolt Interface on August 2, 2013.

9. Plaintiff paid approximately $200 for the drive.

10. Plaintiff is an amateur photographer with high-end equipment and takes very high

definition photos, resulting in very large size computer files.

11. Plaintiff intended to use the drive to store large files for use on his laptop: movie files

transferred from his I-ID video camera, music files and movies purchased from the Internet. Files of

this nature can be several gigabytes in size.

12. Speed in transfer of data was the crucial feature to plaintiff's purchasing decision.

13. Plaintiffbelieved the drive he was buying was the fastest possible external hard drive

because of the Thunderbolt interface.

14. Because in fact the drive did not transfer data at the rate claimed by Defendant,

Plaintiff overpaid for the drive and was damaged thereby.

2


DEFENDANT

15. Defendant Seagate Technology (US) Holdings, Inc. ("Seagate" or "the Company")

manufactures and markets disc drives for enterprise, desktop, mobile computing, consumer

electronics, and branded solutions markets of the disc drive industry.

16. The company was incorporated in in Delaware in 2000 and is based at 920 Disc

Drive, Scotts Valley, California.

17. Seagate is a wholly owned subsidiary of Seagate Technology Public Limited

Company ("Seagate PLC"), which is incorporated in Ireland.

18. Seagate PLC's Irish headquarters are at 38/39 Fitzwilliam Square, Dublin 2, Ireland.

19. According to the Defendant's 2012 10-K, Seagate PLC acquired 64.5% ofLaCie S.A.

on August 3, 2012. Seagate PLC paid approximately $117 million in cash for the acquisition.

20. LaCie S.A. is a maker of hard drives as well as other storage peripherals for

computers.

21. According to Seagate PLC's Form 10-K, as filed with the SEC for the fiscal year

ended June 28, 2013 ("the 10-K"), Exhibit 21.1 titled "Seagate Technology Public Limited

Company Subsidiaries as of June 28, 2013" lists LaCie S.A. as a wholly owned subsidiary of

Seagate.

VENUE AND JURISDICTION

22. Venue in this Court is proper because Defendant's parent company is listed on the

New York Stock Exchange and because a substantial part of the acts or omissions giving rise to the

claims in this action occurred in this Judicial District.

23. This Court has subject matter jurisdiction over this action pursuant to the Class

Action Fairness Act of2005, 28 U.S.C. 1332(d), because (a) the class has more than 100 members,

3

tase 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 4

(b) at least one of the members ofthe proposed class is a citizen ofa state other than New York, and

(c) the total amount in controversy exceeds $5 million exclusive of interest and costs.

24. This Court has personal jurisdiction over Defendant because a substantial portion of

the wrongdoing alleged in this Complaint took place in this District; Defendant is authorized to do

business in this District, has sufficient minimum contacts with this District; and/or otherwise

intentionally avails itselfof the markets in this District through the promotion, marketing and sales

of its Products in this District so that the exercise ofpersonal jurisdiction ofthis Court complies with

judicial notions of fair play and substantial justice.

BACKGROUND FACTS

25. A computer is a device that uses a central processing unit ("CPU") and random-

access memory ("RAM") to perform tasks. The CPU and RAM act together as the brain of the

computer.

26. When electricity is cut from the computer, any information in the CPU or RAM is

lost.

27. Disk drives are used to store information for a longer term, and information currently

written to a disk drive is retained if electricity is cut from the computer.

28. The storing and retrieving of information to or from a disk drive for a computer is

called an input or output operation ("I/0").

29. A physical disk hard drive (a "hard drive") is an electromechanical data storage

device used for storing and retrieving information for a computer using rotating discs (called

platters) coated with magnetic material with motors to spin or "drive" the discs.

30. The drive uses a physical moving actuator arm to read and write data to the surfaces

by magnetically changing areas on the platters from instructions received from the computer.

4

base 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 5

31. The speed at which a hard drive can perform I/0 operations depends on several

factors, including the revolutions-per-minute ("rpm") of platter spin.

32. A 5400-rpm hard drive, for example, has lower I/0 than a 7200-rpm or a 10,000-rpm

drive.

33. Faster I/0 means it requires less time to move a certain amount of data.

34. A solid-state drive (or "SSD") contains neither platters nor motors to "drive" the

discs. It is a newer, faster data storage device used for storing and retrieving information for a

computer.

35. SSDs are typically more expensive than electromechanical drives because they are

able to transfer and store data faster (they are capable of faster I/0).

36. Drives are also measured by their capacity by using a multiple of the unit "byte" for

digital information or computer storage.

37. The prefix giga (symbol "G") is defined in the International System of Units as a

multiplier of 109 and therefore 1 gigabyte ("GB") 109 bytes 1,000,000,000 bytes.

38. A personal computer user today needs larger and larger data storage than a user from

even 2 years ago.

39. An Apple laptop, for example, will ship with anywhere from a 128 GB SSD to a

750GB hard drive.

40. I/0 from drives can be measured several standardized ways: the Maximum.

Sustained Data Transfer Rate (MB/s) and the Maximum. Data Transfer Rate (MB/s) for example.

41. Standards for internal drive connectors also affect I/O. SATA and IDE are two

standards for internal drive connection.

5


42. In order to add more drive storage to a laptop computer or to a desktop or server

computer without opening the case, computer manufacturers developed external interfaces.

43. These external interfaces allow for external devices to interface with the computer,

while allowing easy attachment and detachment of the device.

44. There are interfaces for displays [VGA, DVI, and HDMI ports, for example],

networking [modems and Ethernet ports], sound [miniport, digital coaxial audio, or Toslink optical

ports, for example], and storage peripherals such as memory sticks, optical drives, and external hard

drives.

45. Storage devices use specialized I/0 ports on a computer that both power the device

and move data to and from the computer.

46. Standard ports used today for storage devices are Universal Serial Bus, IEEE 1394

("FireWire"), and the newest addition, Thunderbolt.

47. The Universal Serial Bus ("USB") standard came into use in the 1990's and has three

iterations: USB 1 [also called USB Full Speed], USB 2.0 [also called USB High Speed] and USB 3.0

[also called USB Super Speed].

48. The differences in the USB standard are the shape of the plugs, the speed of data

transfer possible, and the amount of power deliverable.

49. Data transfer speed is measured in units per second, usually megabits per second

("Mb/s") or megabytes per second ("MB/s"). In data transfer, higher numbers are faster and mean it

will take less time to transfer for the computer to or from the storage peripheral.

50. For example; if a user moved 20 digital photos that were 1 megabyte in size from a

computer hard drive to an external storage device, the operation would take 10 seconds at 2 MB/s, 4

6

base 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 7

seconds at 5 MB/s and 1 second at 20 MB/s [according to the online calculator at

http://www.calctool.org/CALC/prof/computing/transfer_time]

51. USB 1 was released in January of 1996 and had a top speed of 12 Mb/s. USB 2.0 was

released in April 2000 and had a specification effective throughput ofup to 480 Mb/s. USB 3.0 was

released in November 2008 and the standard specifies a usable data rate of up to 4 to 5 Gbit/s.

52. FireWire comes in two iterations: 400 and 800. As with USB, the differences in the

FireWire standard are the shape of the plugs, the speed of data transfer possible, and the amount of

power deliverable to devices.

53. Apple introduced FireWire 400 in 1986. It has a top transfer speed of 400 Mbit/s.

FireWire 800 was introduced by Apple in 2003. It has a top transfer speed of 800 Mbit/s.

54. Thunderbolt is the new computer interface that is touted as the fast I/0 solution ofthe

Apple line. Apple first included a Thunderbolt interface on its laptops in 2011.

55. Various PC makers are also beginning to include Thunderbolt ports in their newest

high-end PCs.

56. The standard for Thunderbolt specifies top data transfers up to 10 Gbit/s per channel.

An Internet computer hardware review website posted a graphic that compares the interface

speeds.

7


IOW:Us

http://www.tomshardware.com/reviewslthunderbolt-performance-z77a-gd80,3205.html

57. In summary, under the manufacturer's specifications, the interfaces have the

following throughputs [also called bandwidths]:

a. USB 2.0 can transfer data at a top speed of up to 480 Mbits/s

b. Firewire 800 can transfer data at a top speed of up to 800 Mbits/s;

c. USB 3.0 can transfer data at a top speed of up to 5,000 Mbits/s; and

d. Thunderbolt can transfer data at a top speed of up to 10,000 Mbit/s;

58. Many factors come into play when measuring real world vs. theoretically attainable

speeds. On the website of the USB standards organization, several factors are discussed:

USB's actual throughput is a function ofmany variables. Typically, the most

important ones are the target device's ability to source or sink data, thebandwidth consumption ofother devices on the bus, and the efficiency ofthehoses USB software stack. In some cases, PCI latencies and processorloading can also be critical.

http://www.ush.ore/develo_Nrs/usbfaceband1

59. The device sending the data using the interface is also determinative ofthe true speed

of the transfer of data.

8

r"- CS!il) 0

SGbis. c cC C

I0 0..0 .0

3Gbis 0 02.5Gbits.

111111110111111111111 itiliiioliggiU582.0 FireWire800 Expresseord aSATA 3Gbis USB3.0 4:: tikr..L..“:3i....Rei,..1 T


60. One ofthe uses for the Thunderbolt interface is high-definition video, which requires

very high data transfer speed. Various computer displays have implemented Thunderbolt ports for

this purpose.

61. Data transfer from a hard disk currently has theoretical and practical maximum

speeds.

62. Tom's Hardware webpage comparing speed test results ("benchmarks") of various

internal drives has examples ofhard drives throughputs. Two of the drives tested, Western Digital's

WD4001FAEX and Hitachi's Deskstar 7K4000 were compared to another drive, the Seagate

Barracuda. The author avers, "no drive is able to come close to Seagate's Barracuda, and its read

and write speed averages that exceed 150 MB/s." All of these drives spin at 7,200 rpm and are

electromagnetic drives.

63. The Google calculator translates MB/s into Mb/s as "150 (MB s) 1200 Mb s"

which means that at their fastest, those 3 top drives use less bandwidth that is available with a USB

3.0 interface. [need explanation]

64. On the web retailer NewEgg.com, a major seller of computer peripherals, there is a

distinct and marked price difference between an external hard drive with a USB 3.0 interface and a

Thunderbolt interface.

65. Here is a list of examples of external drives with USB 3.0 interfaces available on

NewEgg.com as of June 21, 2013:

a. A TOSHIBA "Canvio 3.0" 1TB Black Portable Hard Drive [Model number

HDTC610XK3B1] 5400 RPM with a USB 3.0 Interface sells for $75;

b. A Western Digital "My Passport" 1TB Black Portable Hard Drive [Model number

WDBBEP001 OBBK-NESN] with a USB 3.0 Interface sells for $80;

9


c. A Seagate "Expansion" 1TB Black Portable Hard Drive [Model number

STBX1000101] with a USB 3.0 Interface sells for $80;

d. A LaCie "Porsche Design P9220" 1TB External Hard Drive [Model number 302000]

with a USB 3.0 Interface sells for $120;

e. An ADATA "DashDrive Durable Series HD710" 1TB Blue Water & Shock Proof

Portable Hard Drive [Model number AHD710-1TU3-CBL] with a USB 3.0 Interface

sells for $100;

f. A LaCie "Rugged Mini" 1TB Orange External Hard Drive [Model number 301558]

5400 RPM with a USB 3.0 Interface sells for $130;

66. There are very few external drives with Thunderbolt interfaces available on

NewEgg.com as ofJune 21, 2013, but there is one that compares to the list above: A LaCie "Rugged

Thunderbolt Series" 1TB Orange External Hard Drive [Model number 9000294] 5400 RPM with a

Thunderbolt Interface sells for $249.99.

67. LaCie is a division of Seagate and a brand owned, sold, and operated by Defendant.

ALLEGATIONS

68. In selling its Thunderbolt products, LaCie uses uniform graphics on all its packaging.

69. Except for stickers that state the size ofthe drive, Defendant's Thunderbolt external

hard drive is sold in different models with essentially the same graphics and verbiage that explain the

features of the product.

70. The back ofthe box ofany LaCie Thunderbolt drive shows a bar chart comparison of

the interfaces:

Thunderbolt close to 10

USB 3 at 5

10

dase 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 11

FW [FireWire] 800 at 1

USB 2 at 1/2

71. This graph suggests that the LaCie Thunderbolt drive in the package will transfer data

at 10 times the speed of a FireWire 800 external hard drive and at 20 times the speed of a USB 2.0

external hard drive.

11


72. Also on the back of the box underneath the bar chart is a graphic of a round, dial

speedometer pegged at "10 Gb/s" with the heading "Shocking Speeds Up To 10Gb/s".

73. The front of the box touts this same speedometer and verbiage.

12

OCKI NG PE ED:.•-••••••:„:SH...:::.:u•rpi•••• .0.

S i S:sr: I .0 G.blis

tot;

:.1- t•, 1 i::::.•••

ir..,p,

-.ow'. .y.,

'3':•••:i"-':' ••.:-.:;4..:.:, ...y.i.,,,,,


74. On the side of the box for the LaCie "Rugged Thunderbolt Series" 1TB Orange

External Hard Drive [Model number 9000294] is a column titled "Specifications" stating that the

drive inside is a 1 terabyte [TB] drive "ROTATIONAL SPEED CACHE 5400rpm /8 mb or

greater,

75. These specifications appear to claim that the Thunderbolt interface is at least twice as

fast in moving drive data on this drive as a USB 3.0 drive.

76. These states are false and misleading because no 5,400 rpm drive in existence today

exceeds the throughput of a USB 3.0 device.

13

.1 .:j

•-:.:::ii:*:: :::;.:;:::1:: i

__sr,

E........$0:1':, ...11034:,Ait.:: '....1:::'4::;) '..„7;:-.:': ..)-f..4.:.

1, :t4 TiFF!....f t f l' R,,f•:. 4, i.

i :f.::.::, ..:n.::.::: ..2

:f.'31:44t, t-4.51::)ii•''•;, ':t'!•11:, '••:1.1:::1•••':':'..' l'


77. It is not physically possible on any external drive they sell to attain any speed close to

what they claim. There are no drives that can deliver data fast enough to take advantage of the

Thunderbolt speed.

78. On the computer review site Anandtech.com in an article entitled "Hitachi G-

Technology Releases G-RAID Thunderbolt Storage Solution" by Kristian Vätto on April 17, 2012,

the reviewer stated:

For $190 you can get a 3TB USB 3.0 hard drive that will perform thesame due to the fact that the hard drive is the bottleneck.

[Emphasis added] http://www.anandtech.com/show/5759/hitachi-gtechnoloay-releases-graid-thunderbolt-storage-solution

79. Also on the computer review site Anandtech.com in an article entitled "Promise

Pegasus R6 & Mac Thunderbolt Review" by site founder Anand Lal Shimpi on July 8, 2011, the

reviewer stated:

A single 2TB Hitachi Deskstar 7K3000 is good for sequential transfer rates

ofup to —150MB/s. With six in a RAIDS configuration, we should be able to

easily hit several Gbps in bandwidth to the Pegasus R6. The problem is,there's no single drive source that can come close to delivering that sort

of bandwidth.

[Emphasis added] http://www.anaridtech.com/show/4489/promise-pegaSUs-t-O-mac-thm*!1)61review/6

80. Even with a 7,200 rpm drive [which transfers data faster than a 5,400 rpm drive as

found in the LaCie Thunderbolt product] you cannot attain speeds faster than those easily handled by

the less expensive USB 3.0.

81. Even SSDs cannot fully utilize the bandwidth ofUSB 3.0, making any Thunderbolt

solution overkill and a waste ofmoney.

82. LaCie though its deceptive sales, advertising and packaging knowingly leads

consumers to believes its Thunderbolt drives will transfer data faster than is actually possible and

14

C.ase 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 15

faster than cheaper USB 3.0 drives, to lead the unwary consumer purchase their Thunderbolt drive

over another brand and to pay more for their Thunderbolt drives without delivering the claimed

capabilities.

CLASS ACTION ALLEGATIONS

83. Plaintiff brings this action pursuant to Rule 23(b)(2) and (b)(3) of the Federal Rules

of Civil Procedure, on behalf of himself and a Class defined as follows:

All purchasers of Defendant's Products using the Thunderbolt interface.

Excluded from the Class are (i) Defendant, any entity in which Defendant hasa controlling interest or which has a controlling interest in Defendant, andDefendant's legal representatives, predecessors, successors, assigns, and

employees and (ii) the judge and staff to whom this case is assigned, and anymember of the judge's immediate family.

84. Plaintiff is a member of the Class that he seeks to represent. Members of the Class

can be identified using Defendant's records of online retail sales, Product registrations, and other

information kept by Defendant in the usual course of business and/or in the control of Defendant.

Class members can be notified ofthe class action through publication on User websites and direct e-

mailings to address lists maintained in the usual course of business by Defendant.

85. Class members are so numerous that their individual joinder is impracticable. The

precise number of the class members is unknown to Plaintiff, but it is clear that the number greatly

exceeds the number to make joinder impossible.

86. Common questions of law and fact predominate over the questions affecting only

individual Class Members. Some of the common legal and factual questions include:

a. Whether Defendant's Products were deceptively marketed, distributed, and

sold;

15


b. Whether Defendant knew or should have known that the Products were

deceptively marketed, distributed, and sold;

c. Whether Defendant misrepresented the transfer speeds and usefulness ofthe

Products;

d. Whether, by the misconduct set forth herein, Defendant violated consumer

protection statutes and/or false advertising statutes and/or state deceptive business practices

statutes;

e. Whether, by the misconduct set forth herein, Defendant violated the common

laws of negligent misrepresentation and unjust enrichment;

f. Whether, by the misconduct set forth herein, Defendant breached its duty of

good faith and fair dealing; and

g. The nature and extent ofdamages and other remedies to which the conduct of

Defendant entitles the class members.

87. Defendant engaged in a common course of conduct giving rise to the legal rights

sought to be enforced by the class members. Similar or identical claims, marketing and logos,

statutory, common law violations and deceptive business practices are involved. Individual

questions, if any, pale by comparison to the numerous common questions that dominate.

88. The injuries sustained by the class members flow, in each instance, from a common

nucleus of operative facts: Defendant's misconduct. In each case Defendant designed,

manufactured, supplied, and/or sold deceptive packaging, ads, and web pages for their Thunderbolt

products.

16


89. The class members have been damaged by Defendant's misconduct as detailed supra

including but not limited to the financial loss from the extra expense for a feature that Defendant

touted as a benefit of their Product, which benefit did not in reality exist.

90. Plaintiff's claims are typical ofthe claims ofthe other proposed class members. Each

member ofthe proposed Class purchased Defendant's Products to their detriment and was damaged

thereby.

91. Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff is

familiar with the basic facts that form the basis of the proposed class members' claims. Plaintiff's

interests do not conflict with the interests of the other class members that he seeks to represent.

Plaintiff has retained counsel competent and experienced in class action litigation and intends to

prosecute this action vigorously. Plaintiff s counsel has successfully prosecuted complex class

actions, including consumer protection class actions. Plaintiffand Plaintiff's counsel will fairly and

adequately protect the interests of the class members.

92. The class action device is superior to other available means for the fair and efficient

adjudication of the claims of Plaintiff and the proposed class members. The relief sought per

individual member of the Class is small given the burden and expense of individual prosecution of

the potentially extensive litigation necessitated by Defendant's conduct. Furthermore, it would be

virtually impossible for the class members to seek redress on an individual basis. Even if the class

members themselves could afford such individual litigation, the court system could not.

93. Individual litigation of the legal and actual issues raised by the conduct ofDefendant

would increase delay and expense to all parties and to the court system. The class action device

presents far fewer management difficulties and provides the benefits of a single, uniform

adjudication, economies ofscale and comprehensive supervision by a single court. Given the similar

17

d'se 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 18

nature ofthe class members' claims and the absence ofmaterial differences in the state statutes and

common laws upon which the class members' claims are based, a nationwide Class will be easily

managed by the Court and the parties.

FIRST CAUSE OF ACTIONImplied Warranty of Merchantability

and Fitness for Particular Purpose

94. The Plaintiffhereby incorporates by reference each paragraph ofthis Complaint, as if

fully set forth herein.

95. Defendant warranted that the Thunderbolt Products were ofa specific merchantable

quality. The Defendant is a well-known merchant with respect to goods of that kind.

96. Plaintiffand the class relied on Defendant's skill and ability to furnish suitable goods.

97. The Thunderbolt Products did not conform to the promise or affirmations of fact

made on the packages, ads or online.

98. As the result of Defendant's conduct, Plaintiff and the class were harmed.

SECOND CAUSE OF ACTIONBreach of GBL 349 and 350 and the Various Analogous

State Consumer and Advertising Laws

99. The Plaintiff hereby incorporates by reference each paragraph ofthis Complaint, as if

fully set forth herein.

100. Defendant's sale of Thunderbolt Products to Plaintiff and the Class as described

herein constitute the "conduct ofany trade or commerce" within the meaning ofNYS GBL 349 and

350.

101. Defendant's advertisement of Thunderbolt Products to Plaintiff and the Class as

described herein constitute the "false advertising in the conduct ofany business, trade or commerce"

within the meaning ofNYS GBL 350

18


102. Defendant in the normal course of its business advertised and sold Thunderbolt

Products with deceptive claims on its packaging. Defendant misrepresented the speed, ability and

usefulness of the Thunderbolt Products.

103. The foregoing acts and conduct of Defendant are deceptive in that Defendant

represented to the consumer class that its Thunderbolt Products could perform data transfer

operations at speeds they physically could not.

104. By warranting Thunderbolt Products as they did, Defendant violated consumer

protection statutes and/or false advertising statutes and/or state deceptive business practices statutes

and by its deceptive actions, plaintiff and the class were harmed.

THIRD CAUSE OF ACTIONCommon Law Fraud

105. Plaintiff repeats and incorporates the allegations above as if fully set forth herein.

106. Defendant actively concealed from and failed to disclose to Plaintiffand the Class the

true capabilities of the Thunderbolt Products as described above.

107. Defendant knows the true character and quality of their Thunderbolt Products and

their true specifications and capabilities, yet represented other capabilities for their product that they

knew were impossible to attain.

108. Defendant knew the true specifications and capabilities ofthe Thunderbolt Products,

but did not disclose the speed limitations of its hard drives in its sales, packaging, marketing and

advertising, as alleged above, in order to drive sales to its new and more expensive product.

109. Plaintiffand the Class reasonably relied on the packaging, marketing, and advertising

by Defendant of its Thunderbolt Products as having these false capabilities.

110. The facts concealed by Defendant from Plaintiff and the Class are material facts

because any reasonable person would have considered those facts to be important in deciding

19

gase 2:13-cv-06329-LDW-AKT Document 1 Filed 11/14/13 of 21 PagelD 20

whether or not to spend additional monies to purchase the Thunderbolt Products.

111. Defendant intentionally concealed and failed to disclose the true facts about the

Thunderbolt Products for the purpose of inducing Plaintiffand the Class to purchase the Thunderbolt

Products.

112. Had Plaintiff and the Class known ofthe true abilities in the Products, they would not

have purchased the Thunderbolt Products at a premium price.

113. As the result of Defendant's conduct, Plaintiff and the class were harmed by paying

more for Defendant's Thunderbolt Products than lower priced products of equal capabilities.

JURY TRIAL DEMAND

Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury ofall the claims asserted.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff and the proposed class members request that the Court enter an

order or judgment against Defendant including the following:

A. Certification of the action under the Federal Rules of Civil Procedure and

appointment of Plaintiff as Class Representative and his counsel of record as Class Counsel;

B. Actual damages, statutory damages, punitive or treble damages, and such other relief

as provided by the statutes cited herein;

C. Equitable relief in the form of restitution and/or disgorgement of all unlawful or

illegal profits received by Defendant as a result of the unfair, unlawful, and/or deceptive conduct

alleged herein;

D. The costs ofbringing this suit, including reasonable attorneys' fees; and

20


E. All other relief to which Plaintiffand members of the proposed Class may be entitled

at law or in equity.

Dated: November 14, 2013Manhasset, New York

LAW OFFI 0 PAUL C HALEN, P.C.

By:Paul C. Wha en (PW 1300)768 Plandome RoadManhasset, NY 11030

Telephone: (516) 627-5610

Attorney for Plaintiff

21

FOR OFFICE USE ONLY rd\

Case 2:13-cv-06329-LDW-AKT Document 1-1 Filed 11/14/13 Page 1 of 2 PagelD 22IS 44 (Rev. 112013) CIVIL COVER SHEETThe JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service ofpleadings or other papers as required by law, except as

provided by local rules ofcourt. This form, approved by the Judicial Conference of the United States in September I 974, is required for the use of the Clerk of Court for thepurpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM

I. (a) PLAINTIFFS DEFENDANTSSEAGATE TECHNOLOGY (US) HOLDINGS, INC.

Matt Dash

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant

CVXCEPIU3(NTIFF CASES)

63 IN LAND CONDEMNATION CASES. USE THE LOCATION OFTHE TRACT OF LAND INVOLVED.

UN U.S. PLAINTIFF CASES ONLY)

(C) Attorneys (Firm Name. Address. and Telephone Number) Attorneys (IfKnown)LAW OFFICES OF PAUL C. WHALEN, P.C.Paul C. Whalen 768 Plandome Ad. Manhasset, NY 11030 516-627-5610

II. BASIS OF JURISDICTION (Place um "X" in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an -X- in One Box /no- Nagai!),(For Diversds Cases Onto and One BOA for Defendant.)

0 1 U.S. Government 0 3 Federal Question PTF DEF PTE DEF

Plaintiff (US. Government Not a Party) Citizen of This State X l 1 1 Incorporated or Principal Place n 4 11 4

of Business In This State

0 2 U.S. Government X 4 Diversityof Businss In Another Statit

Citizen of Another State 0 2 X 2 Incorporated and Principal Place.. 0 5 X 5

Defendant (Indicate Citizenship qfPanic) oumirivVI 1 p e•e''''i'. s: J.

Citien'oli St:bject ofa 0 3 0 3 Foreign Nation.. 0 6 El 6.Foreign Country

IV. NATURE OF SUIT (Place an "X- in One BoxOnlv)..itilialEIRWQ:CgfirlIMIONERESEMISINVIMMESIIIIIIMMIllitarZilTiliiitz.i.:1)1i,li:r.1.4.illi 11111111211117Kti MIa twass.tonIIII!:7, ';011101i. TfilatilHO 110 insurance PERSONAL INJURY PERSONAL INJURY CI 625 Dmg Related Seizure 0 422 Appeal 28 USC 158 El 375 False Claims Act

O 120 Marine 0 310 Airplane 0 365 Personal Injury of Property 21 USC1481 CI 423 Withdrawal 0 400 State ReapportionmentO 130 Miller Act El 315 Airplane Product Product Liability CI 690 Other 28 USC 157 CI 4.10 Antitrust

CI 140 Negotiable Instrument Liability 0 367 Health Care/ ri 430 Banks andBankingO 150 Recovery of Overpayment 0 320 Assault, Libel & Pharmaceutical IIMI1G7TiTT5ThT4Ti06Tiii 0 450 Commerce

& Enforcement of Judgment Slander Personal Injury 0 820 Copyrights 0 460 DeportationO 151 Medicare Act 0 330 Federal Employers' Product Liability 0 830 Patent El 470 Racketeer Influenced and

CI 152 Recovery of Defaulted Liability El 368 Asbestos Personal 0 840 Trademark Corrupt OrganizationsStudent Loans 0 340 Marine Injury Product 0 480 Consumer Credit

(Excludes Veterans) 0 345 Marine Product Liability 1XXXXOSSATTOTIONNIFilakiiiirgili,, CI 490 Cable/Sat TV

O 153 Recovery of Overpayment Liability PERSONAL PROPERTY 0 710 Fair Labor Standards El 861 MA. (139511) 0 }ISO Securities/Commodities;

of Veteran's Benefits 0 350 Motor Vehicle 0 370 Other Fraud Act 0 862 Black Lung (923) Exchangeri 160 StockholdersSuits CI 355 Motor Vehicle El 371 Truth in Lending 0 720 Labor/Management 0 863 DIWC/D1WW (405(g)) PI 890 Other Statutory Actions

CP 190 Other Contract Product Liability 0 380 Other Personal Relations El 864 SSID Title XVI El 891 Agricultural Acts

CI 195 Contract Product Liability 0 360 Other Personal Property Damage 0 740 Railway Labor Act 0 865 RSI (405(g)) El 893 Environmental Matters

O 196 Franchise Injury CI 385 Property Damage 0 751 Family and Medical CI 895 Freedom of Information

Cl 362 Personal Injury Product Liability Leave Act Act

Medical Mal (ractice El 790 Other Labor Litigation 0 896 Arbitration

InforanifjltilAkiMeallaararean1Trir9T i(Ify14.2,D ailIiiii.iiiMil CI 791 Employee Retirement 111111142;.4,1,11141r „:iirrkz: 0 899 Administrative Procedure

0 210 Land Condemnation El 440 Other Civil Rights Habeas Corpus: Income Security Act 0 870 Taxes (U.S. Plaintiff Act/Review or Appeal of

0 220 Foreclosure 0 441 Voting 0 463 Alien Detainee or Defendant) Agency Decision

0 230 Rent Lease & Ejectment CI 442 Employment CI 510 Motions to Vacate 0 1471 IRS—Third Party 0 950 Constitutionality of

0 240 Torts to Land CI 443 Housing( Sentence 26 USC 7609 State Statutes

0 245 Tort Product Liability Accommodations 0 530 GeneralCI 290 All Other Real Property 0 4.45 Amer. w/Disabilities CI 535 Death Penalty 111111111i1:21/111111111

Employment Other: 0 462 Naturalization Application0 446 Amer. w/Disabilities o 540 Mandamus & Other 0 465 Other Immigration

Other 0 550 Civil Rights Actions

0 448 Education 0 555 Prison Condition0 560 Civil Detainee

Conditions ofConfinement

V. ORIGIN (Place an -X" in One Box Only)

X 1 Original 1 2 Removed from 0 3 Remanded from el 4 Reinstated or 0 5 Transferred from 0 6 Multidistrict

Proceeding State Court Appellate Court Reopened Another District Litigationoecifil

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):28 U.S.C. 1332(d)

VI. CAUSE OF ACTION Brief description of cause:

Deceptive practice of sales of product.VII. REQUESTED IN 2/ CHECK IF THIS 1S A CLASS ACTION DEMAND CHECK YES only ifdemanded in complaint:

COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: XI Yes 0 No

VIII. RELATED CASE(S)IF ANY

(See instructions):JUDGE DOCKET NUMBER

rIATP S1GNATME thE ATT,6Jl1.t4EY OF RECORD

11/14/2013

RECEIPT AMOUNT APPLYING [FP JUDGE MAG JUDGP

EDNY Revision 1/2013case 2:13-cv-06329-LM-MICATAthirlaRtARBEFIRAMMILlIFIBIWY of 2 PagelD 23

Local Arbitration Rule 83.10 provides that with certain exceptions, actions seeking money damages only in an amount not in excess of $150,000,exclusive of interest and costs, are eligible for compulsory arbitration. The amount ofdamages is presumed to be below the threshold amount unless acertific ion to the contrary is filed.

1cku_l, counsel for fikr. 5, do hereby certify that the above captioned civil action isineligible for compulsory arbitration for the following reason(s):

(IC monetary damages sought are in excess of $150,000, exclusive of interest and costs,

the complaint seeks injunctive relief,

the matter is otherwise ineligible for the following reason

DISCLOSURE STATEMENT FEDERAL RULES CIVIL PROCEDURE 7.1

Identify any parent corporation and any publicly held corporation that owns 10% or more or its stocks:

RELATED CASE STATEMENT (Section VIII on the Front of this Form)

Please list all cases that are arguably related pursuant to Division of Business Rule 50.3.1 in Section VIII on the front of this form. Rule 50.3.1 (a)provides that "A civil case is "related" to another civil case for purposes of this guideline when, because of the similarity of facts and legal issues or

because the cases arise from the same transactions or events, a substantial saving ofjudicial resources is likely to result from assigning both cases to the

same judge and magistrate judge." Rule 50.3.1 (b) provides that A civil case shall not be deemed "related" to another civil case merely because the civil

case: (A) involves identical legal issues, or (B) involves the same parties." Rule 50.3.1 (c) further provides that "Presumptively, and subject to the powerof a judge to determine otherwise pursuant to paragraph (d), civil cases shall not be deemed to be "related" unless both cases are still pending before the

court"

NY-E DIVISION OF BUSINESS RULE 50.1(4)(2)

1.) Is the civil action lj1i filed in the Eastern District removed from a New York State Court located in Nassau or Suffolk

County:

2.) If you answered "no" above:

a) Did the events ikr ?missions giving rise to the claim or claims, or a substantial part thereof, occur in Nassau or Suffolk

CountyZ 6 6

b) Did the events of issiAns giving rise to the claim or claims, or a substantial part thereof, occur in the Eastern

District?

If your answer to question 2 (b) is "No, does the defendant (or a majority of the defendants, if there is more than one) reside in Nassau or

Suffolk County, or, in an interpleader action, does the claimant (or a majority of the claimants, if there is more than one) reside in Nassau

or Suffolk County?(Note: A corporation shall be considered a resident of the County in which it has the most significant contacts).

BAR ADMISSION

1 am currently admitted in the Eastern District of New York and currently a member in good standing of the bar of this court.

..„.kr Yes LI No

Are you currently the subject of any disciplinary action (s) in this or any other state or federal court?

D Yes (If yes, please explain) SE No

certify the accuracy ff allinWpfnatiol prov

Signature:

case 2:13-cv-06329-ldw-akt document district court york … · 2013-11-21 · case...

Documents