eff: baker-final

8/14/2019 EFF: Baker-Final

http://slidepdf.com/reader/full/eff-baker-final 1/19



-2-COMPLAINT FOR DAMAGES, RESCISSION AND UNLAWFUL AND UNFAIR BUSINESS PRACTICES

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unwitting and non-consenting consumers unlawful contractual provisions designed to deter

consumers from seeking to enforce their rights. Defendants’ acted in concert and have

concocted a scheme to sell consumers in the State of California software licenses in retail

stores without allowing them to review the terms and conditions of such software licensesprior to sale - when consumers finally are able to view the software licenses for the first time

during the software installation process - consumers who do not electronically agree to such

terms and conditions are prohibited from using the software AND are prohibited from

returning the software to retail stores. If consumers are able to return the software to the

manufacturers such manufacturers have erected hurdles and unfair burdens on such consumers

including not refunding taxes paid, not refunding shipping and handling, and causing delays in

sending refund checks. Plaintiff Cathy Baker brings this action, as more fully stated below, to

stop defendants’ unlawful, misleading, and unfair business practices, and allow consumers to

make an informed decision on whether they want to agree to the onerous terms of such software

license agreements - and if consumers choose not to agree - then allow consumers a fair and

symmetrical way to return such software licenses to the retail stores where originally purchased

for a FULL refund.

THE UNLAWFUL AND UNFAIR BUSINESS PRACTICES OF DEFENDANTS

1. Defendants Microsoft, Inc. (“Microsoft”) and Symantec, Inc. (“Symantec”) engage

in “shrinkwrap licensing” practices that compels consumers who purchase computer software to

open the software package and electronically agree to contractual terms not previously disclosed

at the point of retail sale before the software can be installed. The shrinkwrap or “clickwrap”

licensing practices unlawfully conceal contract terms from the consumer and impose unfair and

onerous contract terms on unwitting and non-consenting consumers. Defendants’ Microsoft and

Symantec further engage in “return policies” that declare that consumers who do not agree to

contract terms cannot return software to retailers but must deal with the manufacturer. Plaintiff is

informed, believes and thereon alleges that other manufacturers of computer software engage in

similar shrinkwrap licensing and return policies that are similarly onerous and plaintiff sues such




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other software manufacturers by the fictitious names Doe 1 through Doe 100 and collectively

identifies all such software manufacturers as “manufacturing defendants” herein. Defendant

CompUSA, Inc. (“CompUSA”) and Best Buy Co., Inc. (“Best Buy”) and other retailers sued

herein as Doe 101 through Doe 200 (collectively identified as the “retailing defendants” herein)sell and have sold the manufacturing defendants software programs licenses at retail to consumers

in the State of California and unlawfully have a policy of refusing to refund the purchase price if

the consumer rejects unfair and/or onerous provisions imposed by manufacturing defendants,

including Microsoft and Symantec, and the retailing defendants base their unlawful refusal to

refund on unfair policies that prohibit consumer return of software packages that have been

opened. If the consumer undertakes to return the software to the manufacturing defendants, some

manufacturing defendants, including Microsoft and Symantec, impose burdens, delays and

conditions designed to deter consumers from asserting their rights; and some manufacturing

defendants, including Microsoft and Symantec, fail to fully compensate consumers for their

losses. On information and belief the software manufacturing defendants herein are acting in

concert with the retailing defendants to concoct and carry out a scheme to unlawfully chill and

prevent the ability of consumers from returning software upon learning the terms of software

licensing agreements and from making informed decisions on whether to agree to onerous

software license agreements and defendants have erected hurdles and unfair and misleading

burdens on consumers who wish to assert their rights and who want to return the software license

for a refund.

2. The shrinkwrap licensing practice employed in connection with “Windows XP

Upgrade” software manufactured by Microsoft requires the consumer to agree to provisions, not

readily ascertainable prior to purchase or at the point of retail sale, stating that any dispute shall

be resolved under the law of the State of Washington, that Microsoft’s warranty is limited to

ninety (90) days after the original receipt of the software notwithstanding that additional software

may be automatically installed on the consumer’s computer by Microsoft after that date, that

Microsoft disclaims liability for “any damages, including but not limited to consequential

damages” and that Microsoft’s liability for damage caused by the software is limited to the cost of




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the software. Microsoft’s imposition of the law of the State of Washington is contrary to

California public policy. The Song-Beverly Consumer Warranty Act, Civil Code §§ 1790 et.

seq., provides rights to California consumers that are superior to those imposed by the State of

Washington, including the right to attorney fees in the event of suit as set forth in Civil Code §1794(d). Because the shrinkwrap licensing practice conceals warranty disclaimers and

limitations, such warranty disclaimers and limitations violate Commercial Code § 2316 and Civil

Code §§ 1793 and 1793.1. “AS IS” and “WITH ALL FAULTS” disclaimers of warranty are

concealed in the interior of Microsoft’s shrinkwrap licensing practice and are not disclosed to the

consumer prior to sale, in violation of Civil Code § 1792.4. Microsoft’s disclaimers and

limitations would allow Microsoft to damage the consumer’s computer and destroy the

consumer’s computer-based information and escape liability for such damage and destruction.

Microsoft’s shrinkwrap licensing practice prohibits re-installation of the software after 30 days

unless the consumer provides personal identifying information to Microsoft, which, plaintiff is

informed, believe and thereon alleges, is used by Microsoft in violation of the consumer’s right to

privacy and Microsoft’s shrinkwrap licensing practice requires the consumer to agree to limit

attachment of peripheral devices to the consumer’s computer and to allow Microsoft to access the

consumer’s computer over the Internet without the consumer’s knowledge; such contract terms

are unlawful, onerous and/or unfair. Plaintiff is informed, believes and thereon alleges that

Microsoft has a business practice of using a similar shrinkwrap licensing practice with each

consumer software product manufactured by Microsoft. Microsoft’s shrinkwrap licensing

practices constitute unlawful, misleading, and unfair business practices.

3. The shrinkwrap licensing practice employed in connection with “Norton Antivirus”

software manufactured by Symantec require the consumer to electronically agree as condition of

software installation to provisions, well after the “purchase” from the retailer, that Symantec’s

warranty is limited to sixty (60) days and that Symantec’s liability for damage caused by the

software is limited to the cost of the software. Because the shrinkwrap or clickwrap licensing

practice conceals warranty disclaimers and limitations, such warranty limitations violate

Commercial Code § 2316 and Civil Code §§ 1793 and 1793.1. Terms imprinted on the box




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containing “Norton Antivirus 2002” and “Norton Systemworks 2003” posted on Symantec’s

website state that a dissatisfied consumer will not be compensated for state sales tax or shipping

costs, if any; but plaintiff is informed, believes and thereon alleges that Symantec has secretly

instructed defendant CompUSA, Inc. to accept returns of the software in facial violation of bothSymantec’s policies and CompUSA’s policies stated on the CompUSA sales receipt. But

consumers reading the Symantec box and Retailing defendants’ return policies may be chilled

from making such returns and unduly influenced into agreeing to such onerous licensing terms

provided for the first time on software installation since returning the software will result in an

overt monetary loss to the consumer. Plaintiff is informed, believes and thereon alleges that

Symantec has a business practice of using similar shrinkwrap and clickwrap licensing and return

policies and practices with each consumer software product manufactured by Symantec.

Symantec’s shrinkwrap licensing and return policies and practices constitute unlawful and unfair

business practices.

4. The shrinkwrap licensing practices and return practices of Microsoft and Symantec

constitute actual fraud as defined by Civil Code § 1572 in that said practices suppress that which

is true by each said defendant with knowledge of the fact and in that each said practice is an act

fitted to deceive consumers, all with the intent to induce consumers to purchase software and

refrain from seeking compensation for their losses if the consumer refuses to consent to contract

terms concealed by the shrinkwrap licensing practices. Retailing defendants connive with

Microsoft and Symantec to defraud consumers and each such retailing defendant is equally liable

with Microsoft and Symantec for such actual fraud.

5. In or about January, 2003, plaintiff Cathy Baker purchased a “Microsoft Windows

XP Upgrade” software package from an outlet maintained by CompUSA in Marin County,

California. “Windows XP Upgrade” contains components that are “assistive devices” as defined

in Civil Code § 1791, but CompUSA, and, on information and belief, retailing defendants in

general, fail in provide the warranty required by Civil Code § 1793.02.

6. In or about January 2003, plaintiff Cathy Baker purchased a Symantec “Norton

Antivirus” software package manufactured by Symantec from an outlet maintained by CompUSA




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in Marin County, California.

7. Plaintiff refused to agree to the terms of contract imposed by Microsoft and

Symantec through the shrinkwrap licensing practices. CompUSA indicated – in substance - on

the receipt that software was unreturnable once the shrinkwrap was opened. When plaintiff attempted to return the Microsoft software package to CompUSA and obtain a refund of the full

price paid, CompUSA refused to provide a refund, giving as a reason that the software package

had been opened. When plaintiff attempted to return the Symantec software package, CompUSA

informed plaintiff that software that had been opened was unreturnable under their return policy

but that Symantec had given CompUSA permission on a case by case basis to accept returns -

notwithstanding statements to the contrary on the software package box - and notwithstanding a

statement on the CompUSA sales receipt that the only relief provided by CompUSA would be

replacement with a copy of the same software. Plaintiff is informed, believes and thereon alleges

that each retailing defendant and each retailing defendant’s agents and employees invoke similar

business practices designed to chill attempts by consumers to seek a refund and to deny a refund

for returned software once a software package has been opened and/or to conceal secret return

policies of manufacturers in an effort to unlawfully chill consumers and members of the general

public from requesting a refund in the first instance.

8. Unlawful, unfair and onerous contract terms were concealed by the Microsoft and

Symantec shrinkwrap licensing practices and could not be discovered by the ordinary consumer

prior to opening the software package. The software packages purchased by plaintiff could not be

used unless plaintiff agreed to contract provisions that were violative of law as hereinabove

alleged and/or with respect to which plaintiff refused to consent. Any consent by plaintiff or the

ordinary consumer to the business practices of defendants was given by mistake or fraud

exercised by or with the connivance of each such defendant. The consideration for the payment

made by non-consenting consumers wholly fails. Plaintiff was and is entitled to rescind the

purchase agreement relating to the Microsoft software pursuant to Civil Code § 1689. Plaintiff

hereby gives notice of rescission to CompUSA of her purchase agreement relating to the

Microsoft software; and plaintiff offers to restore to said defendant that which has been received.




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At all times, plaintiff has been and is entitled to recover all payments made for the above-

referenced Microsoft software and to receive other compensation as provided for in Civil Code

§ 1692 and the Song-Beverly Consumer Warranty Act.

9. Pursuant to Commercial Code § 2711, plaintiff has rightfully rejected and/or justifiably revoked acceptance with respect to the software packages involved and plaintiff is

entitled to recover from defendants involved in the manufacture or sale of software the price that

has been paid along with expenses reasonably incurred in the inspection, receipt, transportation,

care and custody of the software packages. Plaintiff also claims such rights pursuant to

Commercial Code § 2715. The refusals of defendants, and each of them, to recognize plaintiff’s

rights of rejection and/or revocation of acceptance and plaintiff’s right to obtain full

compensation constitute unlawful and unfair business practices.

10. When consumers attempt to return the package of “Windows XP Upgrade” to

Microsoft, Microsoft fails and refuses to compensate plaintiff and consumers for shipping and

handling expenses and further requires consumers to use and incur the costs of “Fedex type”

shipping services with mandatory tracking. The refusal of Microsoft to recognize plaintiff’s

rights of rejection and/or revocation of acceptance and obtain full compensation pursuant to

Commercial Code §§ 2711 and 2715 constitutes an unlawful and unfair business practice.

Plaintiff is informed, believes that Microsoft has an unlawful business practice of failing and

refusing to provide compensation for shipping and handling and other expenses specified in

Commercial Code §§ 2711 and 2715 as to other software packages manufactured by Microsoft.

11. In connection with return “Norton Antivirus” to Symantec, Symantec declares on

the box and on its website that it will not compensate a dissatisfied purchaser for sales tax,

shipping and handling expenses. Said declarations have an unfair chilling effect on consumers

and are violative of Commercial Code §§ 2711 and 2715 and constitute unlawful and unfair

business practices. Plaintiff is informed, believes that Symantec has an unlawful business

practice of failing and refusing to provide compensation for taxes, shipping and handling and

other expenses specified in Commercial Code §§ 2711 and 2715 as to other software packages

manufactured by Symantec.




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PARTIES AND CLASS ACTION ALLEGATIONS

12. Plaintiff Cathy Baker is an individual residing in the County of Marin, State of

California.13. Plaintiff complains on behalf of herself and all California residents who have been

damaged by defendants’ wrongful acts and scheme in not providing software license agreements

to consumers prior to retail sale including those consumers who have not been able to get full

refunds of their software purchase price and/or who have been chilled by unlawful return policies

from obtaining such refunds and/or consumers who incurred unlawful fees and costs in an effort

to obtain a refund. Class members are California residents who have been damaged by wrongful

acts hereinabove alleged from the time of first manufacturing and sale by defendants of such

software as alleged herein to the present. Such class members are readily ascertainable but are so

numerous as to make joinder impractical. There is a well-defined community of interest in the

questions of law and fact involved in this action. The claims of the representative party or parties

are typical of the claims of the class and the representative party or parties will fairly and

adequately protect the interests of the class. Absent a class action, defendants will continue to

engage in the unlawful and unfair business practices herein alleged and/or defendants will retain

benefits wrongfully acquired.

14. Plaintiffs also brings this action in behalf of herself and, as authorized by Business

and Professions Code § 17204, to protect the interests of the General Public of the State of

California.

15. Plaintiff is informed, believes and thereon alleges that defendant Microsoft, Inc. is a

corporation doing business in the State of California and the County of Marin and a manufacturer

of software, including the “Windows XP Upgrade” purchased by plaintiff as hereinabove alleged,

that is sold in the State of California and the County of Marin.

16. Plaintiff is informed, believes and thereon alleges that defendant Symantec, Inc. is a

corporation doing business in the State of California and the County of Marin and a manufacturer

of software, including the “Norton Antivirus 2002” purchased by plaintiff as hereinabove alleged,




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that is sold in the State of California and the County of Marin.

17. Defendant CompUSA, Inc. is a corporation doing business in the State of California

and the County of Marin. Defendant Best Buy Co., Inc. is a corporation doing business in the

State of California and the County of Marin.18. Plaintiff is informed and believes and thereon alleges that manufacturers and

retailers of computer software other than the named defendants, whose identities and/or capacities

are not presently known, engage in practices similar to those alleged herein on the part of the

named defendants. Plaintiff is informed, believes and thereon alleges that individuals and

organizations whose identities and/or capacities are not presently known are responsible for the

wrongful acts herein alleged and/or for losses suffered by plaintiff and the General Public of

California as herein alleged. Plaintiff therefore sues such manufacturers, retailers, individuals and

organizations by the fictitious names Doe 1 through Doe 500, as authorized by Code of Civil

Procedure § 474. When the true names of such manufacturers, retailers and individuals and

organizations become known to plaintiff, plaintiff will amend this complaint pursuant to Code of

Civil Procedure § 474 to so allege.

FIRST CAUSE OF ACTION AND CLAIM FOR RELIEF(Manufacturing Defendants’ Violations of the Song-Beverly Consumer Warranty Act)

19. Plaintiff re-alleges all allegations previously set forth and incorporates such

allegations by this reference.

20. By engaging in the hereinabove-alleged unlawful and unfair business practices, the

manufacturing defendants violated the Song-Beverly Consumer Warranty Act including those

provisions set forth in Civil Code §§ 1792.3, 1792.4, 1793 and 1793.1.

21. Plaintiff and those similarly situated have been damaged by the foregoing violations

and by the failure and refusal of the manufacturing defendants to comply with Commercial Code

§§ 2711 and 2715.

22. Pursuant to Civil Code § 1794, plaintiff and those similarly situated seek recovery

of damages from the manufacturing defendants for such violations, including costs of taxes,

shipping and handling and other expenses specified in Commercial Code §§ 2711 and 2715 that




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have not previously been paid.

23. The failure of the manufacturing defendants to comply with the Song-Beverly

Consumer Warranty Act was willful and plaintiff and those similarly situated are entitled to

recover a civil penalty pursuant to Civil Code § 1794(c).24. Pursuant to Civil Code § 1794(a), plaintiff and those similarly situated request that

the court enjoin the hereinabove-alleged violations of the Song-Beverly Consumer Warranty Act

(the “Act”) and require each manufacturing defendant to:

a. Remove all terms and conditions from its licensing agreement with

consumers that are unlawful and unfair under the Act and include therein all warranties

required by law in the form and manner required by the Act as to California residents;

b. Include with each package of software shipped to each retailer in the State of

California a separate printed copy of all terms and conditions in the licensing agreement

and require, as a condition of the transaction with the retailer, that each such retailer post

such a printed copy of such terms and conditions adjacent to the display of software

packages or provide such a separate printed copy of such terms and conditions to the

consumer prior to the sale of the software.

c. Modify its practices with respect to returns from consumers to provide full

compensation for all taxes, shipping and handling and other expenses as specified in

Commercial Code §§ 2711 and 2715.

25. Pursuant to Civil Code § 1794, plaintiff requests that the court award plaintiff a sum

equal to the aggregate amount of costs and expenses including attorney’s fees.

SECOND CAUSE OF ACTION AND CLAIM FOR RELIEF(Retailing Defendants’ Violations of the Song-Beverly Consumer Warranty Act)



27. By engaging in the hereinabove-alleged unlawful and unfair business practices, the

retailing defendants violated the Song-Beverly Consumer Warranty Act including those

provisions set forth in Civil Code §§ 1792.3, 1792.4, 1793, 1793.02 and 1793.1.




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28. Plaintiff and those similarly situated have been damaged by the foregoing violations

and by the failure and refusal of the retailing defendants to refund the full purchase price and

comply with Commercial Code §§ 2711 and 2715.

29. Pursuant to Civil Code § 1794, plaintiff and those similarly situated seek recoveryof damages from the retailing defendants for such violations, including costs of taxes, shipping

and handling and other expenses specified in Commercial Code §§ 2711 and 2715 that have not

previously been paid.

30. The failure of the retailing defendants to comply with the Song-Beverly Consumer

Warranty Act was willful and plaintiff and those similarly situated are entitled to recover a civil

penalty pursuant to Civil Code § 1794(c).

31. Pursuant to Civil Code § 1794(a), plaintiff and those similarly situated request that

the court enjoin the hereinabove-alleged violations of the Song-Beverly Consumer Warranty Act

(the “Act”) and require the retailing defendants to:

a. Separately affirm in a printed statement posted adjacent to the display of

software packages or provided to the consumer prior to the sale of any software that the

purchase of any software is governed by California law, including the provisions of the Act,

and that the retailer adheres to all requirements of California law with respect to warranties

and warranty disclaimers and/or limitations;

b. Post in a printed statement adjacent to the display of software packages or

provided to the consumer prior to the sale of any software any and all modifications to the

contract terms imposed by the manufacturer as are necessary to bring said contract terms

into compliance with California law and the Act and affirm that the retailer will recognize

the full force and effect of such modifications regardless of any recognition by the

manufacturer.

c. Modify its practices with respect to returns from consumers who refuse to

agree to contract terms imposed by the manufacturer of software to provide full

compensation for the purchase price and all taxes, shipping and handling and other

expenses as specified in Commercial Code §§ 2711 and 2715.




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32. Pursuant to Civil Code § 1794, plaintiff requests that the court award plaintiff a sum

equal to the aggregate amount of costs and expenses including attorney’s fees.

THIRD CAUSE OF ACTION AND CLAIM FOR RELIEF

(Rescission as to All Defendants)33. Plaintiff re-alleges all allegations previously set forth and incorporates such


34. In connection with each sale of a software package manufactured by a

manufacturing defendant and sold by a retailing defendant, as hereinabove alleged, each

manufacturing defendant and each retailing defendant concealed contract provisions as

hereinabove alleged and committed other acts fitted to deceive as hereinabove alleged.

Defendants named herein as Doe defendants were also responsible for such concealments for

such other acts fitted to deceive. Each and every such act constituted actual fraud under Civil

Code § 1572.

35. Each defendant involved in any particular transaction acted as a duly authorized

agent of each other defendant in connection with each act of actual fraud involved in said

transaction. In the alternative, each defendant aided and abetted the wrongful acts of each other

defendant with knowledge thereof. In the alternative, each defendant ratified the wrongful acts of

each other defendant.

36. The concealments of each defendant and each other act fitted to deceive was carried

out by each defendant with the intent of inducing plaintiff and those similarly situated to purchase

software or to refrain from enforcing rights with respect thereto. Each defendant acted with

knowledge of its wrongful acts. Plaintiff and those similarly situated relied on the absence of

unlawful, unfair and onerous contract provisions and the absence of unlawful and unfair business

practices in connection with the purchase of software manufactured for consumers by purportedly

honest manufacturers and sold by purportedly honest retailers. Reliance by plaintiff and those

similarly situated was reasonable.

37. As a consequence of the hereinabove-alleged wrongful acts of defendants, and each

of them, plaintiff and those similarly situated are entitled to rescind their contracts on the grounds




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that consent to such contract was induced by fraud exercised by or with the connivance of the

adverse parties. Plaintiff and those similarly situated are also entitled to reject the software

packages and to revoke acceptance pursuant to Commercial Code § 2711 and to recover

incidental and consequential damages pursuant to Commercial Code § 2715..38. In addition to recovery of money owing to plaintiff and those similarly situated by

the parties to the contract or parties which connived with them, plaintiff and those similarly

situated seek the recovery of punitive damages on the grounds that the acts of fraud of defendants,

and each of them, were done with malice, fraud and oppression as defined in Civil Code § 3294.

FOURTH CAUSE OF ACTION AND CLAIM FOR RELIEF(Manufacturing Defendants’ Unlawful and Unfair Business Practices)



40. The hereinabove-alleged unlawful and unfair business practices of the

manufacturing defendants are subject to the Unfair Business Practices Act set forth in Business

and Professions Code §§ 17200 et. seq.

41. Pursuant to Business and Professions Code § 17203, plaintiff requests that the court

enjoin such unlawful and unfair business practices and require each manufacturing defendant to:


consumers that are unlawful and unfair and include therein all warranties required by

California law in the form and manner required by California law as to California residents;






consumer prior to the sale of the software or in the alternative provide a specific URL for

such licensing terms and conditions on the packaging and a simple means of reviewing such

URL’s related web page at or near the point of sale prior to purchase.




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42. Pursuant to Business and Professions Code § 17203, plaintiff requests that the courtorder the manufacturing defendants to restore to plaintiff and to all persons who have returned

software to the manufacturing defendants within the four years preceding the filing of this

complaint, or to persons claiming through such persons, full compensation for all taxes, shipping

and handling and other expenses as specified in Commercial Code §§ 2711 and 2715 not

previously paid, along with all profits gained through the use of unlawful and unfair business

practices.

43. Plaintiff requests an award of attorney fees pursuant to Code of Civil Procedure §

1021.5.

FIFTH CAUSE OF ACTION AND CLAIM FOR RELIEF(Retailing Defendants’ Unlawful and Unfair Business Practices)



45. The hereinabove-alleged unlawful and unfair business practices of the retailing

defendants are subject to the Unfair Business Practices Act set forth in Business and Professions

Code §§ 17200 et. seq.


enjoin such unlawful and unfair business practices and require each retailing defendant to:



purchase of any software is governed by California law and that the retailer adheres to all

requirements of California law with respect to warranties and warranty disclaimers and/or

limitations;






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into compliance with California law and affirm that the retailer will recognize the full force

and effect of such modifications regardless of any recognition by the manufacturer.

c. Modify its practices with respect to returns from consumers who refuse toagree to contract terms imposed by the manufacturer of software to provide full returns and

compensation for the purchase price and all taxes, shipping and handling and other

expenses as specified in Commercial Code §§ 2711 and 2715.

d. Post such a printed copy of such licensing terms and conditions adjacent to

the display of software packages or provide such a separate printed copy of such terms and

conditions to the consumer prior to the sale of the software or in the alternative provide a

specific URL for such licensing terms and conditions on the packaging and a simple means

of reviewing such URL’s related web page at or near the point of sale prior to purchase.


order the retailing defendants to restore to plaintiff and to all persons who have chosen not to agree

to defendants manufacturer’s software licensing agreement and/or returned software to the retailing

defendants within the four years preceding the filing of this complaint, or to persons claiming

through such persons, full compensation for the purchase price and all taxes, shipping and handling

and other expenses as specified in Commercial Code §§ 2711 and 2715 not previously paid, along

with all profits gained through the use of unlawful, misleading, and unfair business practices.

48. Plaintiff requests an award of attorney fees pursuant to Code of Civil Procedure §

1021.5.

WHEREFORE, plaintiff prays for judgment as follows:

1. The recovery from defendants, and each of them, of the purchase price of each

software package manufactured by each manufacturing defendant and sold by each retailing

defendant to class members, including all taxes, shipping and handling and other expenses to the

extent not previously paid.

2. An injunction against the manufacturing defendants, and each of them, requiring




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each manufacturing defendant to:


consumers that are unlawful and unfair and/or violative of the Song-Beverly Consumer

Warranty Act and include therein all warranties required by law in the form and manner required by law and/or the Song-Beverly Consumer Warranty Act;






consumer prior to the sale of the software or in the alternative provide a specific URL for

such licensing terms and conditions on the packaging and a simple means of reviewing such

URL’s related web page at or near the point of sale prior to purchase.




3. An injunction against the retailing defendants, and each of them, requiring each

retailing defendant to:



purchase of any software is governed by California law, including the provisions of the

Song-Beverly Consumer Warranty Act, and that the retailer adheres to all requirements of

California law with respect to warranties and warranty disclaimers and/or limitations;




into compliance with California law and the Song-Beverly Consumer Warranties Act and

affirm that the retailer will recognize the full force and effect of such modifications




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regardless of any recognition by the manufacturer.

c. Modify its practices with respect to returns from consumers who refuse to

agree to contract terms imposed by the manufacturer of software to provide full returns and

compensation for the purchase price and all taxes, shipping and handling and other expenses as specified in Commercial Code §§ 2711 and 2715.

d. Post such a printed copy of such licensing terms and conditions adjacent to

the display of software packages or provide such a separate printed copy of such terms and

conditions to the consumer prior to the sale of the software or in the alternative provide a

specific URL for such licensing terms and conditions on the packaging and a simple means

of reviewing such URL’s related web page at or near the point of sale prior to purchase.

4. An order requiring the manufacturing defendants to restore to plaintiff and to all

persons who have chosen not to agree to the software manufacturing defendants’ software

licensing agreements and/or returned software to the manufacturing defendants within the four

years preceding the filing of this complaint, or to persons claiming through such persons, full

compensation for all taxes, shipping and handling and other expenses as specified in Commercial

Code §§ 2711 and 2715 not previously paid, along with all profits gained through the use of

unlawful and unfair business practices and/or the creation of a common fund for such remedy or

compensation and/or cy pres to non-profit consumer protection and privacy organizations to assist

in consumer protection and education and allowing consumers to make an informed decision

prior to purchase on whether or not to agree to software licensing agreements and consequences

of such agreements and related consumer rights.

5. An order requiring the retailing defendants to restore to plaintiff and to all persons

who have returned software to the retailing defendants within the four years preceding the filing of

this complaint, or to persons claiming through such persons, full compensation for the purchase

price and all taxes, shipping and handling and other expenses as specified in Commercial Code §§

2711 and 2715 not previously paid, along with all profits gained through the use of unlawful and

unfair business practices.

6. Civil penalties pursuant to Civil Code § 1794(c) as to awards of damages under the




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Song-Beverly Consumer Warranties Act.

7. Punitive damages for actual fraud committed with malice, fraud and oppression.

8. Plaintiff’s attorney fees pursuant to private attorney general, common law, and/or

statute including Civil Code § 1794 and/or Code of Civil Procedure § 1021.5.9. Such other and further relief as the court shall deem just and proper.

Plaintiff hereby requests a jury trial on all issues triable by jury.

Dated: February 7, 2003 ROTHKEN LAW FIRM

By:

Ira P. Rothken, Esq.,

Attorneys for plaintiff Cathy Baker,all others similarly situated and on behalf of

The General Public of the State of California

//IPR//

eff: baker-final

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