`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`27
`
`28
`
`
`
`
`
`
`
`Saima Ali Gipson, Esq. (SBN 324752)
`EMPLOYEE JUSTICE LEGAL GROUP, PC
`1001 Wilshire Boulevard
`Los Angeles, California 90017
`Telephone: (213) 382-2222
`Facsimile: (213) 382-2230
`Email: sali@ejlglaw.com
`
`Attorneys for Plaintiffs,
`LANCE BAIRD, FABIAN HUERTA, AND KOYAANA REDSTAR individually,
`and on behalf of a class of others similarly situated
`
`
`
`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA
`
`
`
`Case No. 2:19-cv-10621-FLA-KS
`
`Assigned to the Hon. Fernando L.
`Aenlle-Rocha in Courtroom 6B
`
`SECOND AMENDED CLASS
`ACTION
`
`COMPLAINT
`
`JURY TRIAL REQUESTED
`
` Plaintiffs,
`
`LANCE BAIRD, FABIAN HUERTA,
`AND KOYAANA REDSTAR,
`individually and on behalf of a class of
`others similarly situated,
`
`
`
` vs.
`
`CHARTER COMMUNICATIONS, INC.
`dba CHARTER COMMUNICATIONS
`(CCI), INC., a Delaware Corporation;
`and DOES 1-100,
`
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`-1-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 2 of 16 Page ID #:793
`
`
`
`
`
`
`Plaintiffs Lance Baird, Koyaana Redstar, and Fabian Huerta (“Plaintiffs”),
`
`individually and on behalf of all others similarly situated (“the Class”), alleges, upon
`
`personal knowledge as to themselves and upon information and belief as to other
`
`matters, as follows:
`
`NATURE OF ACTION
`
`1.
`
`Defendant Charter Communications, Inc., dba Charter Communications
`
`(CCI), Inc. (hereinafter “Defendant”) provides internet service to customers across the
`
`United States and the State of California under the branding name “Spectrum.”
`
`2.
`
`In steep competition with Comcast and other internet providers,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`Defendant is forced to reinvent advertising to attract new customers to its service.
`
`11
`
`3.
`
`One way Defendant draws in new customers in California is to offer
`
`12
`
`“free” internet modems for use by customers in their homes.
`
`13
`
`4.
`
`New customers then have the option for how they would like their new
`
`14
`
`Spectrum internet service to be set up inside their homes. Defendant advertises that
`
`15
`
`customers can either pay a professional to come to their home to install the service –
`
`16
`
`which costs upwards of $50 – or they can self-install the service. Self-installing
`
`17
`
`Defendant’s internet service is, according to Defendant “quick and easy.” All the
`
`18
`
`customer needs is one of Defendant’s “free” modems, or a modem of their own that
`
`19
`
`will meet the technical specifications required to receive Defendant’s service, and the
`
`20
`
`“step-by-step” instructions included with the modem and available online through
`
`21
`
`Defendant’s website.
`
`22
`
`5.
`
`Despite advertising that its modems are “free,” Defendant charges a one-
`
`23
`
`time self-installation “fee” for new customers of its internet service. In addition, many
`
`24
`
`customers are required to physically travel out to Defendant’s stores, pick up the
`
`25
`
`modems, and return back to install the service themselves.
`
`26
`
`6.
`
`Defendant also charges the one-time self-installation “fee” for new
`
`27
`
`customers who opt to use their own modems.
`
`7.
`
`Defendant provides no service or anything of value in exchange for the
`
`28
`
`
`
`-2-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 3 of 16 Page ID #:794
`
`
`
`
`
`one-time self-installation “fee.” Defendant misrepresents that the “fee” is being paid
`
`in exchange for anything of value – a fact which is not apparent at the point of sale.
`
`8.
`
`Defendant intentionally misrepresents its modems as being “free” for new
`
`customers.
`
`9.
`
`Defendant intentionally misrepresents that the self-installation “fee” is
`
`being paid in exchange for anything of value.
`
`10. Plaintiffs and the putative class purchased subscriptions for Defendant’s
`
`internet service and paid a one-time self-installation fee in exchange for no service or
`
`value from Defendant. Plaintiffs and the putative class were uniformly promised “free”
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`use of Defendant’s internet modems, but it is unclear whether the one-time fee actually
`
`11
`
`went toward paying for use of Defendant’s modem.
`
`12
`
`11. Plaintiffs and the putative class were directly and uniformly damaged by
`
`13
`
`Defendant’s intentional misrepresentations.
`
`14
`
`15
`
`12. Plaintiff Lance Baird is an individual resident of Los Angeles County,
`
`PARTIES
`
`16
`
`California.
`
`17
`
`13. Plaintiff Koyaan Redstar is an individual resident of Los Angeles County,
`
`18
`
`California.
`
`19
`
`14. Plaintiff Fabian Huerta is an individual resident of Los Angeles County,
`
`20
`
`California.
`
`21
`
`15. Defendant is a Delaware corporation that is qualified to conduct business
`
`22
`
`in the State of California. Defendant operates dozens of physical stores throughout
`
`23
`
`California, and advertises and markets its services directly to customers in California
`
`24
`
`and in the United States.
`
`25
`
`16. Plaintiffs do not know the true names and capacities of Does 1-100 and
`
`26
`
`therefore uses fictitious names. Plaintiffs will amend the complaint to allege the names
`
`27
`
`and capacities when ascertained.
`
`17. Plaintiffs are informed and believe that Defendant, its contractors, agents,
`
`28
`
`
`
`-3-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 4 of 16 Page ID #:795
`
`
`
`
`
`directly or else through other persons acting on its behalf, conspired to, agreed to,
`
`contributed to, assisted with, and/or otherwise caused all of the wrongful acts, defects,
`
`and omissions which are the subject matter of this complaint.
`
`JURISDICTION AND VENUE
`
`18. At all relevant times Plaintiffs were citizens and residents of Los Angeles
`
`County, California.
`
`19. Defendant is a for-profit corporation organized under the laws of
`
`Delaware with its principal place of business in Stamford, Connecticut.
`
`20. This Court has jurisdiction over the subject matter of this class action,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`which is properly filed in Los Angeles County, because Defendant’s obligations and
`
`11
`
`liability arose from business activities conducted, in large part, in Los Angeles County.
`
`12
`
`Those business activities include purposefully availing itself of California’s markets,
`
`13
`
`including the Los Angeles County market, making false statements to consumers in
`
`14
`
`Los Angeles County, and entering into fraudulent contracts with consumers in Los
`
`15
`
`Angeles County.
`
`16
`
`21. This Court has personal jurisdiction over Defendant because it is
`
`17
`
`authorized to do business in California, which is a sufficient bases to render the
`
`18
`
`exercise of jurisdiction by this Court permissible under notions of fair play and
`
`19
`
`substantial justice.
`
`20
`
`21
`
`STATEMENT OF FACTS
`
`22. Plaintiff Lance Baird purchased internet service from Defendant on
`
`22
`
`October 10, 2019, in the state of California.
`
`23
`
`23. Plaintiff Koyaana Redstar purchased internet service from Defendant on
`
`24
`
`August 29, 2019.
`
`25
`
`24. Plaintiff Fabian Huerta purchased internet service from Defendant on
`
`26
`
`August 16, 2019.
`
`27
`
`25. Plaintiffs each made their decision to purchase internet service from
`
`28
`
`Defendant based on Defendant’s advertised rate for its service, including that there
`
`
`
`-4-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 5 of 16 Page ID #:796
`
`
`
`
`
`would be no additional fee for his use of Defendant’s internet modem with the internet
`
`service.
`
`26. Plaintiffs initially understood that the $9.99 fee for self-installation was
`
`being paid in exchange for something of value. Only upon ordering the service,
`
`traveling to the store to pick up the modem or having it delivered, and having to set up
`
`their service did they understand that they had paid a fee in exchange for nothing of
`
`value.
`
`27. Defendant uniformly misrepresented to Plaintiffs and the putative class
`
`that use of its modems is “free,” and that the $9.99 fee was required to be paid in
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`exchange for something of value from Defendant. If Defendant decided to charge
`
`11
`
`$9.99 as a one-time rental fee for its modems, then it made a material misrepresentation
`
`12
`
`by simultaneously claiming it was providing its modems for “free” and hiding the true
`
`13
`
`nature of the $9.99 fee. If Defendant was simply charging $9.99 for providing no
`
`14
`
`service at all, it was charging a fee not authorized by law and making a material
`
`15
`
`misrepresentation by deceiving Plaintiffs and the putative class that they would receive
`
`16
`
`something of value in exchange for that fee.
`
`17
`
`28. Plaintiffs and the putative class materially relied on Defendant’s
`
`18
`
`misrepresentations and were uniformly harmed by Defendant’s conduct. This is
`
`19
`
`evident because many of Defendant’s competitors did not provide “free” modems to
`
`20
`
`their customers. Thus, making such an offer was an additional value intended to and
`
`21
`
`resulting in attracting additional customers to Defendant’s service. Further, the $9.99
`
`22
`
`fee was – depending on the internet package a customer purchased – as much as 22%
`
`23
`
`of the monthly cost of the service being provided. Thus, the fee was a significant
`
`24
`
`expenditure when compared against the cost of the service itself making it, necessarily,
`
`25
`
`a non-trivial expenditure.
`
`26
`
`29. Defendant intended that customers would rely on its misrepresentations
`
`27
`
`in deciding to purchase internet service for the price paid from Defendant by making
`
`28
`
`misrepresentations at the point of sale. Defendant’s intent is manifested by its
`
`
`
`-5-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 6 of 16 Page ID #:797
`
`
`
`
`
`ubiquitous promulgation of “free” modems in its advertising and its $9.99 presentation
`
`of its fee without any explanation of what the fee would actually be exchanged for.
`
`Defendant manifested its intent to hide the true nature of its fee by making it mandatory
`
`and by providing no explanation of what customers received in exchange for the fee –
`
`thereby preventing customers from realizing that they were getting nothing in exchange
`
`for the fee.
`
`30. Defendant’s illegal conduct was the proximate and direct cause of
`
`Plaintiffs and the putative class’s injuries.
`
`31. Plaintiffs will continue to have a desire and need for internet service
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`throughout the foreseeable future as internet is a necessity of modern society.
`
`11
`
`32. Defendant is still sending advertisements, via e-mail and/or mailers to
`
`12
`
`their physical home addresses, to Plaintiffs, advertising their various products, from
`
`13
`
`internet service deals to packages that include cable and cellular plans.
`
`14
`
`33. Spectrum Internet is one of the only few internet service providers in
`
`15
`
`Southern California. “For most of Los Angeles, choosing an internet provider means
`
`16
`
`17
`
`choosing between two companies: Spectrum and AT&T.”1
`
`34. Due to Defendant continued misrepresentation of its $9.99 fee for self-
`
`18
`
`installation of Defendant’s internet services in its advertising, Plaintiffs cannot confirm
`
`19
`
`whether Defendant’s future statements about its Spectrum internet service would in
`
`20
`
`fact be true.
`
`21
`
`35. Despite competitive pricing, Plaintiff Redstar, who is not a current
`
`22
`
`Spectrum customer, cannot rely on the truth of Spectrum’s current or future
`
`23
`
`advertisements about its internet service when considering whether to switch internet
`
`24
`
`service providers.
`
`25
`
`36. Plaintiff Huerta is still currently using Spectrum’s internet services.
`
`26
`
`However, despite a desire to take advantage of competitive prices for bundling his
`
`27
`
`28
`
`
`
`
`1 Internet Service Provider Options in Los Angeles, Connect California, 2022,
`https://www.connectcalifornia.com/internet-service/los-angeles.
`
`-6-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 7 of 16 Page ID #:798
`
`
`
`
`
`home internet with other services from Spectrum, like cable or cellular plans, Plaintiff
`
`Huerta is unable to trust the veracity of Spectrum’s statements about its other services
`
`when it is still misrepresenting the nature of its fees in advertising in relation to the
`
`$9.99 fee for self-installation.
`
`CLASS ACTION ALLEGATIONS
`
`37. This action is brought on behalf of the following classes:
`
`a. Store Pickup Class: All persons in California who purchased internet
`
`service from Defendant, and to whom Defendant promised “free” use
`
`of Defendant’s internet modems, but were charged $9.99 to self-install
`
`Defendant’s internet service.
`
`b. Own Modem Class: All persons in California who purchased internet
`
`service from Defendant, and were charged $9.99 to self-install
`
`Defendant’s internet service.
`
`38. Excluded from the Classes are Defendant, its legal representatives,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`assigns, and successors, and any entity in which the Defendant has a controlling
`
`16
`
`interest. Also, excluded from the Classes is the judge to whom this case is assigned,
`
`17
`
`the Judge’s immediate family, and Plaintiffs’ counsel and their employees. Plaintiffs
`
`18
`
`reserve the right to amend the above-stated class definitions based on facts learned in
`
`19
`
`discovery, as well as adding subclasses as the Court sees fit.
`
`20
`
`39. Defendant is one of the largest internet service providers the united states.
`
`21
`
`https://ir.charter.com/static-files/c6af1cf1-7a43-4c40-a6e4-86bf1dc31de3 (at p.17).
`
`22
`
`In 2018, Defendant added 1,300,000 internet customers. (Id. at p.7). Considering
`
`23
`
`Defendant’s sizeable footprint in California (id. at p. 9) the putative Class is so
`
`24
`
`numerous that joinder of all members of the Class would be impractical.
`
`25
`
`40. Common questions of law and fact exist as to all members of the Class
`
`26
`
`and predominate over any questions affecting only individual Class members. These
`
`27
`
`common legal and factual questions include but are not limited to the following:
`
`28
`
`
`
`a. Whether Defendant’s advertising of its modems as “free” amounted to
`
`-7-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 8 of 16 Page ID #:799
`
`
`
`
`
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`a material misrepresentation;
`
`b. Whether Defendant’s $9.99 fee for self-installation amounted to a
`
`material representation when no goods or services were provided in
`
`exchange;
`
`c. Whether Defendant’s conduct damaged Plaintiffs and the putative
`
`class and in what amount;
`
`d. Whether Defendant intended Plaintiffs and the putative class would
`
`rely on its misrepresentations in deciding to purchase its internet
`
`service;
`
`e. Whether Defendant negligently, willfully, and/or knowingly
`
`misrepresented the sale of its internet service to Plaintiffs and the
`
`putative class;
`
`f. Whether Defendant’s conduct violated California’s consumer
`
`protection laws;
`
`g. Whether a reasonable consumer would have relied on Defendant’s
`
`advertising in deciding to purchase Defendant’s internet service;
`
`h. Whether Defendant should be required to change its advertising
`
`practice and/or eliminate its $9.99 fee for self-installation of its internet
`
`service.
`
`41. Plaintiffs’ claims are typical of the Class and within each subclass and are
`
`21
`
`based on the same facts, legal theories and/or primary rights of all Class members,
`
`22
`
`because Plaintiffs and each Class member were identically injured in paying $9.99 in
`
`23
`
`exchange for nothing of value. The class action procedure is also superior to individual
`
`24
`
`lawsuits due to the massive volume of potential individual lawsuits and the similarities
`
`25
`
`that persist in each Class member’s claims when compared against the predicted
`
`26
`
`amount of recovery per Class member.
`
`27
`
`42. Plaintiffs will adequately and fairly protect the interests of the Class and
`
`28
`
`each subclass. They have retained counsel experienced in class action litigation.
`
`
`
`-8-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 9 of 16 Page ID #:800
`
`
`
`
`
`Neither Plaintiffs nor their counsel have any interest that might cause them to not
`
`vigorously pursue this action in the Class’ and subclass’ best interests.
`
`43. Certification of the Class and each subclass is proper under California’s
`
`Rules of Civil Procedure and Rules of Court.
`
`44. Plaintiffs and their counsel anticipate that notice to the proposed Class
`
`will be effectuated by mailing notice to Defendant’s internet service customers, whose
`
`addresses Defendant maintains in the normal course.
`
`FIRST CAUSE OF ACTION
`
`(Negligent/Intentional Misrepresentation – By Plaintiffs on behalf of the Class,
`
`against Defendant and Does 1-100)
`
`45. Plaintiffs and the Class repeat and reallege each and every allegation
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`above as if set forth in full herein.
`
`13
`
`46. Defendant made multiple, uniform, and material misrepresentations to
`
`14
`
`Plaintiffs and the Class; specifically, that use of its modems with its internet service
`
`15
`
`would be “free” when in fact it was not, and that the $9.99 fee was being paid in
`
`16
`
`exchange for something of value when in fact it was not.
`
`17
`
`47. Defendant’s misrepresentations were material in multiple respects. First,
`
`18
`
`many of Defendant’s competitors did not provide “free” modems to their customers.
`
`19
`
`Thus, making such an offer was an additional value intended to and resulting in
`
`20
`
`attracting additional customers to Defendant’s service. Second, the $9.99 fee was –
`
`21
`
`depending on the internet package a customer purchased – as much as 22% of the
`
`22
`
`monthly cost of the service being provided. Thus, the fee was a significant expenditure
`
`23
`
`when compared against the cost of the service itself.
`
`24
`
`48.
`
` Defendant intended that Plaintiffs and the Class would rely on its
`
`25
`
`multiple, uniform, and material misrepresentations manifested by its ubiquitous
`
`26
`
`promulgation of “free” modems in advertising and its $9.99 presentation of its fee
`
`27
`
`without any explanation of what the fee would actually be exchanged for. Defendant
`
`28
`
`manifested its intent to hide the true nature of its fee by making it mandatory and by
`
`
`
`-9-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 10 of 16 Page ID #:801
`
`
`
`
`
`providing no explanation of what customers received in exchange for the fee – thereby
`
`preventing customers from realizing that they were getting nothing in exchange for the
`
`fee.
`
`49. Plaintiffs and the Class reasonably relied on Defendant’s multiple,
`
`uniform, and material misrepresentations in purchasing Defendant’s internet service as
`
`evidenced by the misrepresentations being present at the point of sale.
`
`50. Plaintiffs and the Class were and currently remain damaged as a
`
`proximate and direct result of Defendant’s multiple, uniform, and material
`
`misrepresentations.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`51. Plaintiffs’ and the Class’ reasonable reliance on Defendant’s multiple,
`
`11
`
`uniform, and material misrepresentations were a substantial factor in causing their
`
`12
`
`damages.
`
`13
`
`14
`
`15
`
`16
`
`17
`
`SECOND CAUSE OF ACTION
`
`(Violation of California’s Consumer Legal Remedies Act, Cal. Civ. Code §§
`
`1750, et seq. – By Plaintiffs on behalf of California Subclass, against Defendant
`
`52. Plaintiffs and the Class repeat and reallege each and every allegation
`
`and Does 1-100)
`
`18
`
`above as if set forth in full herein.
`
`19
`
`53. Defendant made multiple, uniform, and material misrepresentations to
`
`20
`
`Plaintiffs and the Class; specifically, that use of its modems with its internet service
`
`21
`
`would be “free” when in fact it was not, and that the $9.99 fee was being paid in
`
`22
`
`exchange for something of value when in fact it was not.
`
`23
`
`54. Defendant’s misrepresentations were material in multiple respects. First,
`
`24
`
`many of Defendant’s competitors did not provide “free” modems to their customers.
`
`25
`
`Thus, making such an offer was an additional value intended to and resulting in
`
`26
`
`attracting additional customers to Defendant’s service. Second, the $9.99 fee was –
`
`27
`
`depending on the internet package a customer purchased – as much as 22% of the
`
`28
`
`monthly cost of the service being provided. Thus, the fee was a significant expenditure
`
`
`
`-10-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 11 of 16 Page ID #:802
`
`
`
`
`
`when compared against the cost of the service itself.
`
`55. Defendant intended that Plaintiffs and the Class would rely on its
`
`multiple, uniform, and material misrepresentations manifested by its ubiquitous
`
`promulgation of “free” modems in advertising and its $9.99 presentation of its fee
`
`without any explanation of what the fee would actually be exchanged for. Defendant
`
`manifested its intent to hide the true nature of its fee by making it mandatory and by
`
`providing no explanation of what customers received in exchange for the fee – thereby
`
`preventing customers from realizing that they were getting nothing in exchange for the
`
`fee.
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`56. Plaintiffs and the Class reasonably relied on Defendant’s multiple,
`
`11
`
`uniform, and material misrepresentations in purchasing Defendant’s internet service as
`
`12
`
`evidenced by the misrepresentations being present at the point of sale.
`
`13
`
`57. Plaintiffs and the Class were and currently remain damaged as a result of
`
`14
`
`Defendant’s multiple, uniform, and material misrepresentations.
`
`15
`
`58. That material misrepresentation to Plaintiffs and the Class was that a good
`
`16
`
`(the modem) had characteristics and benefits (being “free”) which it did not have in
`
`17
`
`violation of California Civil Code § 1770(a)(5).
`
`18
`
`59. The material misrepresentation to Plaintiffs and the Class was that a
`
`19
`
`service (the one purportedly being offered in exchange for $9.99) had characteristics,
`
`20
`
`uses and benefits that it did not have (it had no value whatsoever) in violation of
`
`21
`
`California Civil Code § 1770(a)(5).
`
`22
`
`60. Defendant violated California Civil Code § 1770(a)(9) by advertising its
`
`23
`
`modems as “free” when it intended to and did charge customers for their use of the
`
`24
`
`modems.
`
`25
`
`61. Defendant violated California Civil Code § 1770(a)(9) by advertising its
`
`26
`
`self-installation service as conveying something of value to customers when in fact it
`
`27
`
`did not.
`
`62. Defendant violated California Civil Code § 1770(a)(14) by advertising its
`
`28
`
`
`
`-11-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 12 of 16 Page ID #:803
`
`
`
`
`
`modems as “free” when it intended to and did charge customers for their use of the
`
`modems.
`
`63. Defendant violated California Civil Code § 1770(a)(14) by advertising its
`
`self-installation service as conveying something of value to customers when in fact it
`
`did not.
`
`64.
`
` Defendant violated California Civil Code § 1770(a)(19) by advertising
`
`its modems as “free” when it intended to and did charge customers for their use of the
`
`modems.
`
`65. Defendant violated California Civil Code § 1770(a)(19) by advertising its
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`self-installation service as conveying something of value to customers when in fact it
`
`11
`
`did not.
`
`12
`
`13
`
`66. Defendant’s deceptive representations occurred in trade or commerce.
`
`67. Defendant’s representation was unfair and deceptive resulting in an
`
`14
`
`ascertainable economic injury to Plaintiffs and the Class.
`
`15
`
`68. Plaintiffs sent notice to Defendant as required by California Civil Code §
`
`16
`
`1782, requesting Defendant cease its illegal actions. Despite Plaintiffs’ requests that
`
`17
`
`Defendant stop its false advertising, stop charging customers $9.99 for self-installation,
`
`18
`
`and refund all illegally gotten gains Defendant has refused to do so.
`
`19
`
`20
`
`21
`
`22
`
`23
`
`THIRD CAUSE OF ACTION
`
`(Violation of California Business and Professions Code, Cal. Bus. & Prof. Code
`
`§§ 17200, et seq. – By Plaintiffs on behalf of the Class, against Defendant and
`
`69. Plaintiffs and the Class repeat and reallege each and every allegation
`
`Does 1-100)
`
`24
`
`above as if set forth in full herein.
`
`25
`
`70. California Business and Professions Code §§ 17200, et seq., (hereinafter
`
`26
`
`referred at the “UCL”) prohibits unfair competition in the form of any unlawful, unfair
`
`27
`
`or fraudulent business acts or practices.
`
`71. UCL section 17204 allows a person injured by the unfair business acts or
`
`28
`
`
`
`-12-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 13 of 16 Page ID #:804
`
`
`
`
`
`practices to prosecute a civil action for violation of the UCL.
`
`72. Defendant made multiple, uniform, and material misrepresentations to
`
`Plaintiffs and the Class; specifically, that use of its modems with its internet service
`
`would be “free” when in fact it was not, and that the $9.99 fee was being paid in
`
`exchange for something of value when in fact it was not.
`
`73. The acts and practices described above constitute unfair, unlawful and
`
`fraudulent business practices, and unfair competition, within the meaning of the UCL.
`
`Among other
`
`things, Defendant
`
`intentionally defrauded –
`
`through material
`
`misrepresentations – customers into selecting its service over the service of its
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`competitors in order to gain a competitive advantage resulting in unfair competition in
`
`11
`
`its industry.
`
`12
`
`74. As a direct and proximate result of the aforementioned acts and practices,
`
`13
`
`Plaintiffs and the Class have suffered a loss of money and property.
`
`14
`
`75. UCL § 17203 provides a court may restore to any person in interest money
`
`15
`
`or property which may have been acquired by means of such unfair competition.
`
`16
`
`Plaintiffs and the Class are each entitled to restitution pursuant to UCL § 17203 for all
`
`17
`
`monies improperly overpaid to Defendant in connection with their purchase of internet
`
`18
`
`service during the four-year period prior to filing this Complaint.
`
`19
`
`76. UCL § 17202 provides “notwithstanding section 3369 of the Civil Code,
`
`20
`
`specific or preventative relief may be granted to enforce a penalty, forfeiture, or penal
`
`21
`
`law in a case of unfair competition.” Plaintiffs and the putative class are entitled to all
`
`22
`
`applicable penalty provisions of the Labor Code pursuant to Business and Professions
`
`23
`
`Code § 17202.
`
`24
`
`77. Plaintiffs’ success in this action will enforce the important rights affecting
`
`25
`
`the public interest, and in that regard Plaintiffs sue on behalf of themselves as well as
`
`26
`
`others similarly situated and, accordingly, pursuant to the UCL, this Court should make
`
`27
`
`such orders or judgments as may be necessary to prevent continued fraud by Defendant
`
`28
`
`of any unlawful or deceptive practices prohibited by the UCL, including but not limited
`
`
`
`-13-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 14 of 16 Page ID #:805
`
`
`
`
`
`to disgorgement of ill-gotten gains, which may be necessary to restore Plaintiffs and
`
`the Class the money Defendant has unlawfully obtained.
`
`78. Plaintiffs herein takes it upon themselves to enforce these lawful claims.
`
`There is a financial burden involved in pursuing this action, an action seeking to
`
`vindicate a public right, and it would be against the interest of justice to penalize
`
`Plaintiffs by forcing them and/or their class to pay other parties’ attorney fees from the
`
`recovery in this action pursuant to California’s Code of Civil Procedure §1021.5 and
`
`otherwise.
`
`79. Wherefore, Plaintiffs and the Class request relief as hereinafter provided.
`
`FOURTH CAUSE OF ACTION
`
`(Violation of California Business and Professions Code §§ 17500, et seq. – By
`
`Plaintiffs on behalf of the Class, against Defendant and Does 1-100)
`
`80. Plaintiffs and the Class repeat and reallege each and every allegation
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`above as if set forth in full herein.
`
`15
`
`81. Defendant made multiple, uniform, and material misrepresentations to
`
`16
`
`Plaintiffs and the Class; specifically, that use of its modems with its internet service
`
`17
`
`would be “free” when in fact it was not, and that the $9.99 fee was being paid in
`
`18
`
`exchange for something of value when in fact it was not.
`
`19
`
`82. Defendant’s misrepresentations were material in multiple respects. First,
`
`20
`
`many of Defendant’s competitors did not provide “free” modems to their customers.
`
`21
`
`Thus, making such an offer was an additional value intended to and resulting in
`
`22
`
`attracting additional customers to Defendant’s service. Second, the $9.99 fee was –
`
`23
`
`depending on the internet package a customer purchased – as much as 22% of the
`
`24
`
`monthly cost of the service being provided. Thus, the fee was a significant expenditure
`
`25
`
`when compared against the cost of the service itself.
`
`26
`
`83. Defendant intended that Plaintiffs and the Class would rely on its
`
`27
`
`multiple, uniform, and material misrepresentations manifested by its ubiquitous
`
`28
`
`promulgation of “free” modems in advertising and its $9.99 presentation of its fee
`
`
`
`-14-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 15 of 16 Page ID #:806
`
`
`
`
`
`without any explanation of what the fee would actually be exchanged for. Defendant
`
`manifested its intent to hide the true nature of its fee by making it mandatory and by
`
`providing no explanation of what customers received in exchange for the fee – thereby
`
`preventing customers from realizing that they were getting nothing in exchange for the
`
`fee.
`
`84. Plaintiffs and the Class reasonably relied on Defendant’s multiple,
`
`uniform, and material misrepresentations in purchasing Defendant’s internet service as
`
`evidenced by the misrepresentations being present at the point of sale.
`
`85. Plaintiffs and the Class were and currently remain damaged as a
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`proximate and direct result of Defendant’s multiple, uniform, and material
`
`11
`
`misrepresentations.
`
`12
`
`13
`
`14
`
`15
`
`16
`
`86. Wherefore, Plaintiffs and the Class request relief as hereinafter provided.
`
`FIFTH CAUSE OF ACTION
`
`(Unjust Enrichment – By Plaintiffs on behalf of the Class, against Defendant
`
`87. Plaintiffs and the Class repeat and reallege each and every allegation
`
`and Does 1-100)
`
`17
`
`above as if set forth in full herein.
`
`18
`
`88. Defendant uniformly misrepresented that use of its modems with its
`
`19
`
`internet service would be “free” when in fact it was not, and that the $9.99 fee was
`
`20
`
`being paid in exchange for something of value when in fact it was not.
`
`21
`
`89. Defendant received such monies from Plaintiffs and the Class based, at
`
`22
`
`least in part, on its misrepresentations. Had Plaintiffs and the Class known or had
`
`23
`
`reason to know that the misrepresentations were in fact false, they would have, at least,
`
`24
`
`paid less monies to Defendant for the internet service.
`
`25
`
`90. Defendant retained, and continues to retain, such monies that it received
`
`26
`
`from Plaintiffs and the Class and as a result, has been unjustly enriched to the detriment
`
`27
`
`of Plaintiffs and the Class.
`
`28
`
`///
`
`
`
`-15-
`SECOND AMENDED CLASS ACTION COMPLAINT
`
`
`
`Case 2:19-cv-10621-FLA-KS Document 69 Filed 04/18/22 Page 16 of 16 Page ID #:807
`
`
`
`
`
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff