`
`
`
`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`1990 North California Boulevard, Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`E-Mail: ltfisher@bursor.com
`
`BURSOR & FISHER, P.A.
`Yitzchak Kopel (Pro hac vice)
`888 Seventh Avenue, Third Floor
`New York, NY 10019
`Telephone: (646) 837-7150
`Facsimile: (212) 989-9163
`E-Mail: ykopel@bursor.com
`
`
`
`Attorneys for Plaintiff
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`
`Case No. 4:20-cv-08102-YGR
`
`
`FIRST AMENDED CLASS ACTION
`COMPLAINT
`
`
`JURY TRIAL DEMANDED
`
`
`EDWARD TROMBLE, individually and on
`behalf of all others similarly situated,
`
`Plaintiff,
`
`v.
`
`WESTERN DIGITAL CORPORATION,
`
`Defendant.
`
`
`
`
`
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 2 of 18
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`Plaintiff Edward Tromble (“Plaintiff”), by and through his attorneys, brings this action on
`behalf of himself and all others similarly situated against Defendant Western Digital Corporation
`(“Western Digital” or “Defendant”). Plaintiff makes the following allegations pursuant to the
`investigation of his counsel and based upon information and belief, except as to allegations
`specifically pertaining to himself and his counsel, which are based on personal knowledge.
`NATURE OF THE ACTION
`1.
`This is a class action lawsuit on behalf of purchasers of the following Western
`Digital hard drives: WD Blue 3.5'' 2 terabyte (WD20EZAZ), WD Blue 3.5'' 6 terabyte
`(WD60EZAZ), WD Blue 2.5'' 1 terabyte (WD10SPZX), WD Blue 2.5'' 2 terabyte (WD20SPZX)
`(collectively, the “WD Blue Drives”), and WD Black 2.5'' 1 terabyte WD10SPSX (the “WD
`Black Drives”) (collectively, the “Hard Drives” or the “Products”).
`2.
`Defendant has failed to disclose that the Hard Drives utilize Shingle Magnetic
`Recording (“SMR”) technology, which results in slower performance and inferior stability
`compared to higher-performance Conventional Magnetic Recording (“CMR”) technology.
`3.
`Defendant previously utilized CMR technology in the Hard Drives, but
`surreptitiously switched to SMR technology in the last several years without disclosing this
`change to consumers.
`4.
`This inferior technology is cheaper to manufacture for Defendant. But despite the
`downgrade, the pricing for the Hard Drives has remained the same.
`5.
`In this regard, Defendant was able to increase its profits by reducing its costs of
`goods sold while still bringing in the same amount of revenue for each of the Hard Drives sold.
`6.
`Had Defendant disclosed that the Hard Drives use SMR technology, Plaintiff and
`putative Class members would not have purchased the Hard Drives, or would have paid less for
`the Hard Drives than they did.
`7.
`Plaintiff and Class members were accordingly injured by the price premium they
`paid for inferior hard drives.
`
`
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 3 of 18
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`I.
`
`BACKGROUND
`OVERVIEW OF HARD DRIVE TECHNOLOGY
`8.
`A hard drive disk (“HDD”) is a form of magnetic mass storage. Each hard drive
`contains a stack of circular plates of magnetic material called “platters,” divided into billions of
`tiny areas called “bits” that can be independently magnetized (to store a 1) or demagnetized (to
`store a 0). Data is “read” (retrieved) or “written” (recorded) onto an HDD by converting strings
`of bits into electrical current fed through an electromagnet that changes the magnetization of
`each bit. Once the information is written onto the HDD, the HDD uses a magnetic reader to turn
`the data back into a useful form (the file to be stored or retrieved), much like a record player’s
`needle translates a record’s grooves into music.1
`9.
`To store the amount of data that HDDs store today, the HDDs must contain
`billions of bits. Thus, “areal density” comes into play, which is the number of bits of data that
`can be recorded onto a platter and is measured by the number of bits or gigabits (one billion bits)
`per square inch. Higher areal density values allow for greater storage using the same amount of
`disk space.2
`10.
`There are several methods that exist to read and write data to HDDs and
`maximize areal density. The first of these is Perpendicular or Conventional Magnetic Recording
`(“CMR”). CMR “works by aligning the poles of the magnetic elements, which represent bits of
`data, perpendicularly to the surface of the disk. Magnetic tracks are written side-by-side, without
`overlapping.”3
`//
`//
`
`
`1 Kanawat Senanan, How do Hard Drives Work?, TED-ED, https://www.youtube.com/
`watch?v=wteUW2sL7bc; How a Hard Disk Drive Works, SEAGATE, https://www.youtube.com/
`watch?v=NtPc0jI21i0.
`2 What are PMR and SMR Hard Disk Drives?, SYNOLOGY, https://www.synology.com/en-
`us/knowledgebase/DSM/tutorial/Storage/PMR_SMR_hard_disk_drives (last accessed June 11,
`2020).
`3 Id.
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`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 4 of 18
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`11.
`CMR HDDs “delivery excellent random-access performance,” and are as such
`“widely used not only in PCs but also for online storage applications.”4 CMR is used in most
`standard HDDs.5
`12.
`Another method of reading and writing data is Shingled Magnetic Recording
`(“SMR”). “Rather than writing each magnetic track without overlapping, SMR overlaps each
`new track with part of the previously written track, much like shingles on a roof. By overlapping
`the tracks, write heads become thinner, thus expanding areal density.”6
`
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`4 Shimomura Kazuhito, Shingled Magnetic Recording Technologies for Large-Capacity Hard
`Disk Drives, 1 TOSHIBA REVIEW GLOBAL EDITION 33, 33 (2015), https://www.toshiba.co.jp/tech/
`review/en/01_02/pdf/a08.pdf.
`5 Joel Hruska, Western Digital, Seagate Are Shipping Slow SMR Drives Without Informing
`Customers: Reports, EXTREMETECH, Apr. 14, 2020,
`https://www.extremetech.com/computing/309389-western-digital-seagate-reportedly-shipping-
`slow-smr-drives-without-informing-customers.
`6 What are PMR and SMR Hard Disk Drives?, SYNOLOGY.
`
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 5 of 18
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`13.
`SMR thus allows for low-cost, high-capacity HDDs.7 “However, if new (or
`modified) data needs to be placed near existing data, the drive will have to overwrite the
`neighboring shingled tracks … That makes [SMR] drive[s] significantly slower at writing tasks,
`especially for random writes.”8
`14.
`In addition, the design of SMR drives makes permanent data loss more likely.
`Whereas data engineers can rebuild certain components on other storage types and recover lost
`data, the SMR data translators cannot be repaired. This can result in permanent data loss if the
`translators are damaged.9
`15.
`In short, while SMR HDDs boast high areal density, they are at a disadvantage in
`nearly every other category.10 For these reasons, SMR HDDs are typically only used “for cold
`data storage, like archives and backups, because of their poor performance,”11 and are typically
`marked as “archival” to designate the use of the technology.12 SMR HDDs are not
`recommended for use by the ordinary consumer.13
`
`
`7 Shingled Magnetic Recording Technologies for Large-Capacity Hard Disk Drives, 1 TOSHIBA
`REVIEW GLOBAL EDITION at 33.
`8 Paul Alcorn, Western Digital Fesses Up: Some Red HDDs Use Slow SMR Tech Without
`Disclosure, TOM’S HARDWARE, Apr. 14, 2020, https://www.tomshardware.com/news/wd-fesses-
`up-some-red-hdds-use-slow-smr-tech.
`9 David Blizzard, WD Shingled Magnetic Recording – New Road Blocks For Data Recovery
`Pros, BLIZZARD DATA RECOVERY, https://www.blizzarddr.com/wd-smr-translation-new-road-
`blocks/.
`10 Joel Hruska, Western Digital, Seagate Are Shipping Slow SMR Drives Without Informing
`Customers: Reports.
`11 Paul Alcorn, Western Digital Fesses Up: Some Red HDDs Use Slow SMR Tech Without
`Disclosure.
`12 Jim Salter, Buyer Beware—That 2TB-6TB “NAS” Drive You’ve Been Eyeing Might be SMR,
`ARS TECHNICA, Apr. 17, 2020, https://arstechnica.com/gadgets/2020/04/caveat-emptor-smr-
`disks-are-being-submarined-into-unexpected-channels/.
`13 Joel Hruska, Western Digital, Seagate Are Shipping Slow SMR Drives Without Informing
`Customers: Reports.
`
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 6 of 18
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`II. WESTERN DIGITAL’S FRAUDULENT OMISSIONS
`16. Western Digital is one of the largest computer HDD manufacturers in the United
`
`States.
`
`17. Western Digital markets its hard drives series by color. The WD Black Drives are
`“comprised of the performance oriented consumer drives. WD Black Drives are aimed at high
`capacity with the fastest possible throughput.”14
`18. Western Digital advertises its WD Black Drives as having “[s]ophisticated
`performance-enhancing features [that] deliver the speed you need for demanding applications
`like photo and video editing and internet gaming.” Western Digital claims the WD Black Drives
`offer “[h]igh performance, high capacity, high reliability, and cutting-edge technology.”15
`19.
`The WD Blue Drives are “aimed at mixing high capacity, fast sequential
`write/read speeds, and affordability. These drives are primarily aimed at everyday computing
`and basic media consumption; they are the jumping-off point for the average customer.”16
`20. Western Digital advertises its WD Blue Drives as “offer[ing] the features that are
`ideal for your everyday mobile computing needs.”17
`21. Western Digital maintained that most of its drives were CMR-based until April
`2020. Even as late as March 2020, Yemi Elegunde, an enterprise and channel sales manager for
`Western Digital UK claimed:
`
`“The only SMR drive that Western Digital will have in production is our 20TB
`hard enterprise hard drives and even these will not be rolled out into the channel.
`All of our current range of hard drives are based on CMR Conventional
`Magnetic Recording. With SMR Western Digital would make it very clear as
`
`
`14 Eric Hamilton, WD Blue vs. Black vs. Red & Purple HDD & SSD Differences (2017), GAMERS
`NEXUS, Feb. 8, 2017, https://www.gamersnexus.net/guides/2796-wd-blue-vs-black-vs-red-in-
`2017.
`15 WD BLACK PERFORMANCE MOBILE HARD DRIVE, https://shop.westerndigital.com/products/
`internal-drives/wd-black-mobile-sata-hdd#WD10SPSX.
`16 Eric Hamilton, WD Blue vs. Black vs. Red & Purple HDD & SSD Differences (2017).
`17 WD BLUE PC MOBILE HARD DRIVE, https://shop.westerndigital.com/products/internal-
`drives/wd-blue-mobile-sata-hdd#WD20SPZX.
`
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 7 of 18
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`that format of hard drive requires a lot of technological tweaks in customer
`systems.”18
`22.
`Consumers were not aware that the Hard Drives utilized SMR technology. Only
`Western Digital knew that the Hard Drives used SMR technology.
`23.
`In April 2020, Western Digital admitted that the following drives utilize SMR
`technology:19
`
`24.
`The use of SMR technology in WD Black Drives is particularly egregious
`because, as noted above, the WD Black Drives are designed for “high-performance users.”20 As
`Joel Hruska writes on the tech blog, ExtremeTech:
`
`Selling an SMR drive in the WD Black line is an insult to the product. When
`Western Digital created its initial color-based branding, WD Black hard
`drives were supposed to sit at the top of the stack.21
`
`
`//
`
`
`
`18 Jim Salter, Buyer Beware—That 2TB-6TB “NAS” Drive You’ve Been Eyeing Might be SMR
`(emphasis added).
`19 Paul Alcorn, WD Sets the Record Straight: Lists All Drives that Use Slower SMR Tech, TOM’S
`HARDWARE, Apr. 23, 2020, https://www.tomshardware.com/news/wd-lists-all-drives-slower-
`smr-techNOLOGY (last accessed June 12, 2020).
`20 Id.
`21 Joel Hruska, Western Digital Comes Clean, Shares Which Hard Drives Use SMR,
`EXTREMETECH, Apr. 24, 2020, https://www.extremetech.com/computing/309730-western-
`digital-comes-clean-shares-which-hard-drives-use-smr (last accessed June 12, 2020).
`
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 8 of 18
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`25.
`Consumers have likewise excoriated Western Digital for its failure to disclose that
`the Hard Drives use SMR technology22:
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`22 FYI – WESTERN DIGITAL SMR HDDS, REDDIT,
`https://www.reddit.com/r/DataHoarder/comments/g7m542/fyi_western_digital_smr_hdds/ (last
`accessed June 15, 2020).
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 9 of 18
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`26.
`Further, even though SMR HDDs are cheaper to produce, Western Digital is not
`passing those savings onto consumers.23 For instance, in January 2020, prior to disclosing that
`its WD Black Drives use SMR technology, Western Digital sold the WD Black Drives for
`approximately $69.24 Yet, since disclosing the WD Black Drives use the inferior SMR
`technology, Western Digital is still selling the WD Black Drives for $6925:
`
`
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`23 Paul Alcorn, Western Digital Fesses Up: Some Red HDDs Use Slow SMR Tech Without
`Disclosure.
`24 WD BLACK PERFORMANCE MOBILE HARD DRIVE, WAYBACK MACHINE, https://web.archive
`.org/web/20200104165130/https://shop.westerndigital.com/products/internal-drives/wd-black-
`mobile-sata-hdd#WD10SPSX.
`25 WD BLACK PERFORMANCE MOBILE HARD DRIVE, https://shop.westerndigital.com/products/
`internal-drives/wd-black-mobile-sata-hdd#WD10SPSX.
`
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 10 of 18
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`27.
`The same is true of the WD Blue Drives. For instance, in March 2020, prior to
`disclosing that its WD Blue Drives use SMR technology, Western Digital sold the 6 TB WD
`Blue Drive for $168 (pre-discount).26 Yet, since disclosing the WD Blue Drives use the inferior
`SMR technology, technology, Western Digital is still selling the 6 TB WD Blue Drives for $168
`(pre discount)27:
`
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`26 WD BLUE PC DESKTOP HARD DRIVE, WAYBACK MACHINE, https://web.archive.org/web/
`20200310230750/https://shop.westerndigital.com/products/internal-drives/wd-blue-desktop-sata-
`hdd#WD60EZAZ.
`27 WD BLUE PC DESKTOP HARD DRIVE, https://shop.westerndigital.com/products/internal-
`drives/wd-blue-desktop-sata-hdd#WD60EZAZ.
`
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 11 of 18
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`28.
`In short, Plaintiff and Class members who purchased the WD Black Drives or
`WD Blue Drives were not told that the Hard Drives use SMR technology, which affects drive
`performance and data stability. These consumers paid a price premium for drives they believed
`used CMR technology, which offers better performance. Had Western Digital disclosed that the
`Hard Drives use SMR technology, Plaintiff and Class members would not have purchased the
`Hard Drives, or would have paid less for the Hard Drives.
`29.
`Plaintiff brings this action on behalf of himself and the Class for equitable relief
`and to recover damages and restitution for: (i) violation of New York General Business Law
`(“GBL”) § 349, (ii) violation of GBL § 350, (iii) fraudulent concealment, and (iv) unjust
`enrichment.
`
`PARTIES
`30.
`Plaintiff Edward Tromble is a resident of Kenmore, New York and has an intent to
`remain there, and is therefore a domiciliary of New York. In or about December 2019, Mr.
`Tromble purchased a 6 TB WD Blue Drive from Best Buy in New York for approximately $210.
`When deciding which hard drive to purchase, Mr. Tromble was particularly concerned with hard
`drive performance. Mr. Tromble was aware that the WD Blue Drives were advertised as
`“offer[ing] the features that are ideal for your everyday mobile computing needs.” Based on this,
`Mr. Tromble understood that he would receive a Hard Drive utilizing components suitable for
`everyday mobile computing needs, rather than inferior components which were prone to slow
`performance and data loss.
`31.
`Prior to purchase, Mr. Tromble carefully reviewed the labeling on his WD Blue
`Drive’s packaging, but he saw no representations that the WD Blue Drive used SMR technology.
`Had Defendant disclosed that the WD Blue Drives use the inferior SMR technology, which caused
`slower performance and worse data integrity, Mr. Tromble would have been aware of that fact and
`would not have purchased the WD Blue Drive at all, or would have only been willing to pay a
`substantially reduced price for the WD Blue Drive.
`32. Mr. Tromble used the WD Blue Drive as directed, but has repeatedly experienced
`data loss.
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`Case 4:20-cv-08102-YGR Document 61 Filed 03/05/21 Page 12 of 18
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`33.
`Defendant Western Digital Corporation is a Delaware corporation with its
`principal place of business at 5601 Great Oaks Parkway, San Jose, California 95119. Western
`Digital distributes Hard Drives throughout the United States, and specifically in the State of New
`York.
`
`JURISDICTION AND VENUE
`34.
`This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C.
`§ 1332(d) because there are more than 100 class members, the aggregate amount in controversy
`exceeds $5,000,000.00, exclusive of interest, fees, and costs, and at least one Class member is a
`citizen of a state different from Defendant.
`35.
`This Court has personal jurisdiction over Defendant because Defendant maintains
`its principal place of business in California.
`36.
`Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391 because
`Defendant maintains its principal place of business in this District and the events or omissions
`giving rise to this action occurred in this District.
`CLASS REPRESENTATION ALLEGATIONS
`37.
`Plaintiff seeks to represent a class defined as all persons in the United States who
`purchased the Hard Drives (collectively, the “Class”). Excluded from the Class are persons who
`made such purchase for purpose of resale.
`38.
`Plaintiff also seeks to represent a subclass defined as all Class members who
`purchased the Hard Drives in New York (the “New York Subclass”).
`39.
`Collectively, the Class and the New York Subclass shall be referred to as the
`“Classes.”
`Numerosity. Members of the Classes are so numerous that their individual
`40.
`joinder herein is impracticable. On information and belief, members of the Class number in the
`millions. The precise number of members of the Class and Subclass and their identities are
`unknown to Plaintiff at this time but may be determined through discovery. Members of the
`Class and Subclass may be notified of the pendency of this action by mail and/or publication
`through the distribution records of Defendant and third-party retailers and vendors.
`FIRST AMENDED CLASS ACTION COMPLAINT – JURY TRIAL DEMANDED
`CASE NO. 4:20-cv-08102-YGR
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`(c)
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`(e)
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`(f)
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`(d)
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`Existence and predominance of common questions of law and fact. Common
`41.
`questions of law and fact exist as to all members of the Class and subclass and predominate over
`questions affecting only individual members of the Class and subclass. Common legal and
`factual questions include, but are not limited to:
`(a) Whether Defendant’s failure to disclose the presence of SMR technology
`in the Hard Drives is a material omission;
`(b) Whether Defendant had a duty to disclose the presence of SMR
`technology in the Hard Drives;
`whether Defendant is liable to Plaintiff and the Classes for unjust
`enrichment;
`whether Plaintiff and the Class have sustained monetary loss and the
`proper measure of their losses;
`whether Plaintiff and the Class and Subclass are entitled to declaratory and
`injunctive relief; and
`whether Plaintiff and the Class and Subclass are entitled to restitution and
`disgorgement from Defendant.
`Typicality. The claims of the named Plaintiff are typical of the claims of the
`42.
`Class and Subclass in that the named Plaintiff was exposed to Defendant’s misleading marketing
`and promotional materials and representations, purchased the Hard Drives without knowledge
`that they use SMR technology, and suffered a loss as a result of that purchase.
`Adequacy of Representation. Plaintiff is an adequate representative of the Class
`43.
`and Subclass because his interests do not conflict with the interests of the members of the
`Classes he seeks to represent, he has retained competent counsel experienced in prosecuting class
`actions, and he intends to prosecute this action vigorously. The interests of members of the
`Classes will be fairly and adequately protected by Plaintiff and his counsel.
`Superiority. The class mechanism is superior to other available means for the
`44.
`fair and efficient adjudication of the claims of members of the Class and subclass. Each
`individual member of the Classes may lack the resources to undergo the burden and expense of
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`individual prosecution of the complex and extensive litigation necessary to establish Defendant’s
`liability. Individualized litigation increases the delay and expense to all parties and multiplies
`the burden on the judicial system presented by the complex legal and factual issues of this case.
`Individualized litigation also presents a potential for inconsistent or contradictory judgments. In
`contrast, the class action device presents far fewer management difficulties and provides the
`benefits of single adjudication, economy of scale, and comprehensive supervision by a single
`court on the issue of Defendant’s liability. Class treatment of the liability issues will ensure that
`all claims and claimants are before this Court for consistent adjudication of the liability issues.
`
`COUNT I
`Violation Of New York General Business Law § 349
`(On Behalf Of The New York Subclass)
`45.
`Plaintiff incorporates by reference and re-alleges each and every allegation set
`forth above as though fully set forth herein.
`46.
`Plaintiff brings this claim individually and on behalf of members of the New York
`Subclass against Defendant.
`47.
`By the acts and conduct alleged herein, Defendant committed unfair or deceptive
`acts and practices by failing to disclose that the Hard Drives use SMR technology.
`48.
`The foregoing deceptive acts and practices were directed at consumers.
`49.
`The foregoing deceptive acts and practices are misleading in a material way
`because SMR technology has inferior speed (performance) and data security to standard CMR
`technology used in most consumer-grade HDDs. Accordingly, Defendant’s omission was
`material to Plaintiff and members of the New York Subclass.
`50.
`Defendant alone possessed the knowledge that the Hard Drives use SMR
`technology, and did not provide that information to consumers until April 2020.
`51.
`Plaintiff and members of the New York Subclass were injured as a result because
`(a) they would not have purchased the Hard Drives if they had known that the Hard Drives use
`inferior and unsuitable SMR technology, and (b) they overpaid for the Hard Drives on account of
`Defendant’s failure to disclose that the Hard Drives use SMR technology.
`
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`52.
`On behalf of himself and other members of the New York Subclass, Plaintiff
`seeks to enjoin the unlawful acts and practices described herein, to recover his actual damages or
`fifty dollars, whichever is greater, three times actual damages, and reasonable attorneys’ fees.
`
`COUNT II
`Violation Of New York General Business Law § 350
`(On Behalf Of The New York Subclass)
`53.
`Plaintiff incorporates by reference and re-alleges each and every allegation set
`forth above as though fully set forth herein.
`54.
`Plaintiff brings this claim individually and on behalf of members of the New York
`Subclass against Defendant.
`55.
`Based on the foregoing, Defendant has engaged in consumer-oriented conduct
`that is deceptive or misleading in a material way, which constitutes false advertising in violation
`of Section 350 of the New York General Business Law, by failing to disclose that the Hard
`Drives use SMR technology.
`56.
`The foregoing advertising was directed at consumers and was likely to mislead a
`reasonable consumer acting reasonably under the circumstances.
`57.
`This omission has resulted in consumer injury or harm to the public interest.
`58.
`Defendant alone possessed the knowledge that the Hard Drives use inferior and
`unsuitable SMR technology, and did not provide that information to consumers until April 2020.
`59.
`As a result of this omission, Plaintiff and members of the New York Subclass
`have suffered economic injury because (a) they would not have purchased the Hard Drives if
`they had known that the Hard Drives use SMR technology, and (b) they overpaid for the Hard
`Drives on account of Defendant’s failure to disclose that the Hard Drives use SMR technology.
`60.
`On behalf of himself and other members of the New York Subclass, Plaintiff
`seeks to enjoin the unlawful acts and practices described herein, to recover their actual damages
`or five hundred dollars, whichever is greater, three times actual damages, and reasonable
`attorneys’ fees.
`//
`//
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`COUNT III
`Fraudulent Concealment
`(On Behalf Of The Nationwide Class)
`61.
`Plaintiff hereby incorporates by reference the allegations contained in all
`preceding paragraphs of this complaint.
`62.
`Plaintiff brings this claim individually and on behalf of the members of the
`proposed Class and New York Subclass against Defendant.
`63.
`Defendant had a duty to disclose material facts to Plaintiff and the Class, namely
`that Defendant were in fact manufacturing, distributing, and selling the Hard Drives with SMR
`technology without disclosing as much, because Defendant had superior knowledge such that the
`transactions without the disclosure were rendered inherently unfair.
`64.
`Defendant possessed knowledge of these material facts. During this time,
`Plaintiff and members of the Classes purchased the Hard Drives without knowing the Hard
`Drives used inferior and unsuitable SMR technology, nor was such knowledge readily available
`to Plaintiff and members of the Class. Indeed, even following purchase, a consumer would need
`to disassemble her Hard Drive in order to discover that it used SMR, rather than CMR,
`technology.
`65.
`Defendant failed to discharge its duty to disclose these materials facts.
`66.
`In so failing to disclose these material facts to Plaintiff and the Class, Defendant
`intended to hide from Plaintiff and the Class that the Hard Drives they were purchasing used
`SMR technology, and thus acted with scienter and/or an intent to defraud.
`67.
`Defendant knew that Plaintiff and members of the Class were acting on the basis
`of Defendant’s failure to disclose that the Hard Drives used SMR technology.
`68.
`Plaintiff and the Class reasonably relied on Defendant’s failure to disclose insofar
`as they would not have purchased the Hard Drives sold by Defendant had they known the Hard
`Drives used SMR technology.
`69.
`As a direct and proximate cause of Defendant’s fraudulent concealment, Plaintiff
`and the Class suffered damages in the amount of price premium paid for the Hard Drives that
`Plaintiff and the Class believed did not use SMR technology.
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`As a result of Defendant’s willful and malicious conduct, punitive damages are
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`70.
`warranted.
`
`COUNT IV
`Unjust Enrichment
`(On Behalf Of The Classes)
`71.
`Plaintiff hereby incorporates by reference the allegations contained in all
`preceding paragraphs of this complaint.
`72.
`Plaintiff brings this claim individually and on behalf of the members of the
`proposed Class and New York Subclass against Defendant.
`73.
`Plaintiff and the Class members conferred a benefit on Defendant in the form of
`monies paid to purchase Defendant’s Hard Drives.
`74.
`Defendant is aware of this benefit.
`75.
`Defendant voluntarily accepted and retained this benefit.
`76.
`Defendant has been unjustly enriched in retaining the revenues derived from
`Plaintiff’s and Class members’ purchases of Hard Drives. Retention of those monies under these
`circumstances is unjust and inequitable because Defendant failed to disclose that the Hard Drives
`use inferior and unsuitable SMR technology.
`77.
`Because Defendant’s retention of the non-gratuitous benefits conferred on it by
`Plaintiff and members of the Classes is unjust and inequitable, Defendant must pay restitution to
`Plaintiff and the members of the Class and subclass for their unjust enrichment, as ordered by the
`Court.
`
`RELIEF DEMANDED
`WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, seeks
`judgment against Defendant, as follows:
`(a)
`For an order certifying the Classes under Rule 23 of the Federal Rules of
`Civil Procedure and naming Plaintiff as representative of the Class and
`New York Subclass and Plaintiff’s attorneys as Class Counsel to represent
`the Class and New York Subclass;
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`(b)
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`(c)
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`(d)
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`(e)
`(f)
`(g)
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`(h)
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`For an order declaring the Defendant’s conduct violates the statutes
`referenced herein;
`For an order finding in favor of Plaintiff and the Class and New York
`Subclass on all counts asserted herein;
`For compensatory, statutory, and punitive damages in amounts to be
`de