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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 1 of 19
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`Alan Kang, Esq. (Bar No. 235080)
`
`AK LAW, A.C.P.C.
`333 City Blvd. West, 17th Floor
`Orange, CA 92868-5905
`Telephone: (714) 388-6937
`Facsimile: (855) 820-1099
`Email: alan@aklawsc.com
`
`Adam M. Moskowitz (pro hac vice forthcoming)
`adam@moskowitz-law.com
`Howard M. Bushman (pro hac vice forthcoming)
`howard@moskowitz-law.com
`Joseph M. Kaye (pro hac vice forthcoming)
`joseph@moskowitz-law.com
`THE MOSKOWITZ LAW FIRM, PLLC
`2 Alhambra Plaza
`Suite 601
`Coral Gables, FL 33134
`Telephone: (305) 740-1423
`
`[Additional Counsel on Signature Page]
`
`
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN JOSE DIVISION
`
`
`
`JEANETTE MERCADO, on behalf of herself
`and all others similarly situated,
`
`
`Plaintiff,
`
`
`v.
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`EBAY INC., a Delaware Corporation,
`
`
`Defendant.
`
`
`No.
`
`CLASS ACTION COMPLAINT FOR
`VIOLATION OF CALIFORNIA’S UNFAIR
`COMPETITION LAW, CALIFORNIA’S
`CONSUMER LEGAL REMEDIES ACT,
`AND QUASI-CONTRACT, RESTITUTION,
`UNJUST ENRICHMENT
`
`JURY TRIAL DEMANDED
`
` CLASS ACTION
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`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
`
`

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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 2 of 19
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`Plaintiff Jeanette Mercado, on behalf of herself and other similarly situated consumers,
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`hereby brings this action against eBay Inc. for violations of California’s Unfair Competition Law
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`(“UCL”), Cal. Bus. & Prof. Code §§ 17200, et seq., Consumers Legal Remedies Act, California
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`Civil Code §1750, et seq. (the “CLRA”), and for quasi-contract/restitution/unjust enrichment.
`
`INTRODUCTION
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`1.
`
`In the midst of the ongoing COVID-19 pandemic, while federal, state, and local
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`governments around the country declare states of emergency and issue mandates for citizens to stay
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`home and practice social distancing in order to avoid spreading the highly contagious novel
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`coronavirus that causes an often severe and sometimes fatal respiratory infection, unscrupulous
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`sellers opportunistically prey upon the public by gouging prices of essential items—like N-95, N-
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`100 and surgical masks; hand sanitizer and gel; disinfectant sprays like Lysol; disinfecting wipes;
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`toilet paper; gloves; paper towels; baby formula; baby wipes; tampons; and diapers—to
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`unconscionably profit off of vulnerable and fearful consumers during these unprecedented times.
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`Not only is such gross misconduct unfair and inhumane, it is a criminal offense that constitutes a
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`per se violation of California’s Unfair Competition Law. See Cal. Penal. Code §§ 396(h), (i).
`
`2.
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`While eBay now publicly states that it is trying to stem the use of eBay’s platform
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`by sellers who have charged, and continue to charge, gouging rates to consumers across the
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`country, eBay’s very business model not only allows but encourages such price gouging, to eBay’s
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`financial benefit: in addition to charging fees for initially listing items, eBay charges a “final value
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`fee” when items actually sell, which is calculated as a percentage of the total amount of the sale.1
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`Thus, the higher the sale price, the more profit eBay stands to earn.
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`3.
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`California has been at the front lines of the fight against the COVID-19 pandemic.
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`Indeed, on February 3, 2020, Santa Clara County—where eBay is headquartered—was the first in
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`the state to declare a state of emergency after its first confirmed COVID-19 infection. On March 4,
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`2020, Governor Newsom declared a State of Emergency per Government Code § 8625(c), and
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`thereafter instructed all “individuals living in the State of California to stay home or at their place
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`1https://www.ebay.com/help/selling/fees-credits-invoices/selling-fees?id=4364#section2
`accessed May 3, 2020).
`
`(last
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`-2-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
`
`
`
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`

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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 3 of 19
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`of residence,” and to “[c]onsider on-line ordering for food and other supplies.”2 By March 13,
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`2020, the United States of America declared a state of emergency pursuant to the National
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`Emergencies Act.3
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`4.
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`Further, the CDC has advised all Americans to “[o]rder food and other items online
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`for home delivery or curbside pickup (if possible),” and to “[o]nly visit the grocery store, or other
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`stores selling household essentials, in person when you absolutely need to,” as “[t]his will limit
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`your potential exposure to others and the virus that causes COVID-19.”4
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`5.
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`Due in large part to the widespread coronavirus shutdowns, and with product
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`scarcity pervading brick-and-mortar establishments, online retailers have enjoyed unparalleled
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`demand from consumers who need to obtain essential supplies without leaving their homes. It was
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`against this dire backdrop that Senator Edward J. Merkey (D-Massachusetts) stated that internet-
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`based retailers “have a particular responsibility to guard against price gouging in current
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`circumstances as consumers—who are finding the shelves of local brick-and-mortar stores bare,
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`and who may wish to avoid venturing into crowded stores and shopping malls—turn to the
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`internet.”5
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`6.
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`In short, the COVID-19 pandemic has sparked a profound shift in how the global
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`market operates. In light of the conditions the pandemic created—where consumers are ordered to
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`stay home and warned that venturing out into the public can be as dangerous as a game of Russian
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`roulette—Plaintiff and the Class are left with no choice but to purchase essential goods like N-95,
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`N-100 and surgical masks; hand sanitizer and gel; disinfectants like Lysol; disinfecting wipes;
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`toilet paper; gloves; paper towels; baby formula; baby wipes; tampons; and diapers from online
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`marketplaces like eBay.6
`
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`2https://www.cdph.ca.gov/Programs/CID/DCDC/CDPH%20Document%20Library/Self_Isolation_
`Gu
`idance_03.16.20.pdf
`(last
`accessed
`May
`3,
`2020);
`see
`also
`https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf (last accessed May 3, 2020).
`3https://www.fema.gov/news-release/2020/03/13/president-donald-j-trump-directs-fema-support-
`under-emergency-declaration (last accessed May 3, 2020).
`4 https://www.cdc.gov/coronavirus/2019-ncov/daily-life-coping/essential-goods-services.html (last
`accessed May 3, 2020).
`5https://www.markey.senate.gov/imo/media/doc/letter%20to%20Bezos%20re%20coronavirus%20
`price-gouging.pdf (last accessed May 3, 2020).
`6 For these reasons, the Court should reject any attempt by eBay to enforce any restrictive
`provisions of the take-it-or-leave it contract against its customers, especially during this emergency
`-3-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 4 of 19
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`7.
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`Plaintiff brings this action on behalf of herself and all others similarly situated to
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`hold eBay accountable for permitting price gouging to run rampant across its platform in order to
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`enrich itself at the expense of vulnerable consumers in California and nationwide.
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`JURISDICTION AND VENUE
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`8.
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`This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)
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`because this case is filed as a class action under Federal Rules of Civil Procedure 23 and the
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`aggregate amount in controversy exceeds the sum of $5,000,000, exclusive of interest and costs,
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`and a substantial number of members of the nationwide class are citizens of a state different than
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`eBay.
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`9.
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`Venue is proper in this district and division under 28 U.S.C. § 1391(a) because a
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`substantial part of the events or omissions giving rise to the claims asserted herein occurred in this
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`judicial district. Further, eBay resides in this district and is subject to personal jurisdiction in the
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`Northern District of California.
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`10.
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`Pursuant to Local Rules 3-2(c) and 3-5(b), a substantial part of the events or
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`omissions giving rise to the claims asserted herein occurred in Santa Clara County, where eBay is
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`located, and this case should be assigned to the San Jose division, pursuant to Local Rule 3-2(e).
`
`PARTIES
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`11.
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`Plaintiff Jeanette Mercado is a resident and domicile of Orange County, California,
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`and thus a citizen of California.
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`12.
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`Defendant eBay, Inc. is a Delaware corporation with its principal office at 2025
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`Hamilton Avenue, San Jose, California 95125. eBay is thus a citizen of California.
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`13.
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`eBay may be served through its registered agent, CT Corporation System, 818 West
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`Seventh Street, Suite 930, Los Angeles, California 90017.
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`14.
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`Venue is proper in this Court since this action has a substantial connection to this
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`forum because all of eBay’s conduct as alleged herein emanated from its principal place of business
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`in Santa Clara County, California.
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` FACTUAL ALLEGATIONS
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`time in our country, as unconscionable, contrary to public policy, and unenforceable.
`-4-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 5 of 19
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`15.
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`eBay is an online auction and classified advertisement website. eBay is the world’s
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`largest open marketplace with 1.3 billion listings live at any given time and with millions of
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`transactions happening every day on its platform across more than 190 markets.7
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`16.
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`Under current Centers for Disease Control and Prevention (CDC) guidance, N95
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`respirators are critical supplies that must be reserved for health care workers and other medical first
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`responders, rather than sold to the general public.8 As further stated by Mike Roman, CEO of 3M
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`(who manufactures n95 masks), “[e]very respirator mask that’s available right now should be
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`going to a healthcare worker on the front lines, caring for coronavirus-infected patients. They
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`should not be sold in stores to consumers.”9
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`17.
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`On March 14, 2020, Jeanette, an Uber and Lyft driver—performing an essential
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`business and high-at-risk for infection due to the close proximity to the public—was sold a 2-pack
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`of n95 masks on eBay for a total of $23.98. As the retail price of these masks as listed by Home
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`Depot, O’Reilly’s Auto Parts, and other national retailers never exceeded $8.99, Jeanette purchased
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`the masks at a nearly 300% markup.
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`18.
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`California’s anti-price gouging statute, Cal. Penal Code § 396, strictly prohibits
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`price gouging during a declared emergency, and was enacted because “some merchants have taken
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`unfair advantage of consumers by greatly increasing prices for essential consumer goods and
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`services.” Cal. Penal Code § 396(a). The legislature acknowledged that “[w]hile the pricing of
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`consumer goods and services is generally best left to the marketplace under ordinary conditions,
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`when a declared state of emergency or local emergency results in abnormal disruptions of the
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`market, the public interest requires that excessive and unjustified increases in the prices of essential
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`consumer goods and services be prohibited.” Id.
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`19.
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`To discourage price gouging, and make the prohibition effective and enforceable,
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`California’s anti-price gouging statute prohibits raising the price of many consumer goods and
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`7
`https://www.ebayinc.com/stories/news/we-are-actively-removing-price-gouging-prohibited-
`items-from-ebays-marketplace/ (last accessed May 3, 2020).
`8
`https://www.fda.gov/medical-devices/personal-protective-equipment-infection-control/n95-
`respirators-and-surgical-masks-face-masks (last accessed May 3, 2020).
`9 https://www.cnn.com/2020/03/23/business/3m-ceo-n95-masks-target/index.html (last accessed
`May 3, 2020).
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`-5-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
`
`
`
`
`

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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 6 of 19
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`services by more than 10% after an emergency has been declared, rendering presumptively
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`unlawful any price increases above that threshold. Specifically, the governing statute provides in
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`pertinent part:
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`Upon the proclamation of a state of emergency declared by the President of the
`United States or the Governor, or upon the declaration of a local emergency by an
`official, board, or other governing body vested with authority to make that
`declaration in any county, city, or city and county, and for a period of 30 days
`following that proclamation or declaration, it is unlawful for a person, contractor,
`business, or other entity to sell or offer to sell any consumer food items or goods,
`goods or services used for emergency cleanup, emergency supplies, medical
`supplies, home heating oil, building materials, housing, transportation, freight,
`and storage services, or gasoline or other motor fuels for a price of more than 10
`percent greater than the price charged by that person for those goods or services
`immediately prior to the proclamation or declaration of emergency.
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`Cal. Penal Code § 396(b). Such price increases are only permitted under California Penal Code §
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`396(b) if they are “directly attributable to additional costs” imposed on the seller by an upstream
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`supplier or due to “additional costs for labor or materials used to provide the services [] during the
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`state of emergency or local emergency.” Id.
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`20.
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`Not only is a violation of California’s price gouging law a misdemeanor offense,
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`punishable by imprisonment up to a year, or a fine of up to $10,000, or both, it is a per se “unlawful
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`business practice and an act of unfair competition within the meaning of Section 17200 of the
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`Business and Professions Code.” Id. §§ 396(h)–(i).
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`21.
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`The price protections set forth in California Penal Code § 396 were triggered no
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`later than February 3, 2020, when Santa Clara County declared California’s first state of emergency
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`relating to COVID-19. From that point forward, price increases anywhere in California exceeding
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`the 10 percent statutory threshold were presumptively unlawful. Subsequently, Governor Newsom
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`declared a statewide State of Emergency on March 4, 2020, and the United States federal
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`government followed suit and declared a national state of emergency on March 13, 2020. While §
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`396(b) provides that a prohibition on price gouging lasts 30 days after each declared emergency,
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`through Executive Order N-44-20, Governor Newson extended California’s price gouging
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`prohibition for all products covered by § 396(b) until September 4, 2020, in accordance with §
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`396(g) (providing that prohibition on price gouging may be extended “for additional 30-day
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`periods, as needed, by a local legislative body, local official, the Governor, or the Legislature, if
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`-6-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
`
`

`

`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 7 of 19
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`deemed necessary to protect the lives, property, or welfare of the citizens.”).
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`22.
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`According to E Commerce Bytes, April 30, 2020:10
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`Ecommerce platforms are under scrutiny for their listings of high-demand items at
`exorbitant prices as people complain of price gouging during the coronavirus
`outbreak - including lawmakers and regulators. Online sellers have both defended
`the practice as capitalism’s supply-and-demand model and condemned the
`practice as exploitive during a public health crisis. . . .
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`The poster child of "price gouging" was the seller profiled in the New York Times
`in early March who reportedly bought up nearly 18,000 bottles of hand-sanitizer
`to sell on eBay. He donated the bottles after a backlash, and the state Attorney
`General began an investigation. . To some who are outraged about the items and
`prices turning up on marketplaces, it feels like platforms are swatting at listings
`that violate the bans, such as eBay's ban on face masks and other items.
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`23.
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`To avoid adverse publicity while at the same time allowing price-gouging to flourish
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`on its platform, eBay took what it knew to be superficial and ineffective steps to end acknowledged
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`price-gouging on its platform. Beginning on March 5, 2020, eBay reported that it had
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`“implemented a ban on certain items listed on our site, which includes blocking new listings and
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`removing existing ones that sell: masks including N95/N100 and surgical masks; hand
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`sanitizers/gels; and disinfecting wipes. This week, we expanded the restricted items list to include
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`toilet paper, baby formula and baby wipes, tampons and diapers, which will only be permitted for
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`sale by business sellers in a fixed price format. In addition, we have added a price gouging
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`reporting tool, allowing people to report items that violate our policies in real time.” 11
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`24.
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`eBay knows that its “ban” is insufficient and ineffective to halt the rampant price
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`gouging that pervades its platform: while it has sought to remove “millions” of listings violating
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`the “ban,” any such action failed to effectively stop the ongoing price gouging where on any given
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`day it hosts over 1.3 billion listings. 12
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`25.
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`eBay’s business model incentivizes it to turn a blind eye to price gouging in most
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`cases: in addition to charging fees for initially listing items, eBay charges a “final value fee” when
`
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`10https://www.ecommercebytes.com/C/abblog/blog.pl?/comments/2020/3/1585061795.html/1/0
`(last accessed May 3, 2020).
`11
`https://www.ebayinc.com/stories/news/we-are-actively-removing-price-gouging-prohibited-
`items-from-ebays-marketplace/ (last accessed May 3, 2020).
`12 Id. (last accessed May 3, 2020).
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`-7-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
`
`
`
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`

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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 8 of 19
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`items actually sell, which is calculated as a percentage of the total amount of the sale.13 Thus, the
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`higher the sale price, the more profit eBay stands to earn.
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`26.
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`For this reason, even months after eBay implemented its ban, there are many
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`examples of essential products such as n95 masks continuing to be sold on eBay for exorbitant and
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`unconscionable prices. Below are but a few examples:
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`
`
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`
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`13https://www.ebay.com/help/selling/fees-credits-invoices/selling-fees?id=4364#section2
`accessed May 3, 2020).
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`(last
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`& PROF. CODE § 17200
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`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
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`

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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 11 of 19
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`27. Moreover, eBay’s public touting of a purported “ban” on price gouging is itself
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`likely to mislead consumers, because it creates the false impression that the remaining listings for
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`essential products have been screened for unlawful price-gouging.
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`28.
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`eBay’s purported crack-down on unlawful sales on its platform is deliberately
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`pretextual, undertaken with “a wink and a nod” to the continued daily sale of tens of thousands
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`essential products at price-gouging prices. The upside for eBay in allowing this rampant price-
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`gouging on its platform is clear: eBay’s posted revenues since the beginning of the COVID-
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`19 pandemic have surpassed all prior expectations, and eBay shares have added about 8.2%
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`since the beginning of the year versus the S&P 500’s decline of -11.4%.14
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`CLASS ACTION ALLEGATIONS
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`29.
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`Plaintiff brings this proposed action on behalf of herself and, pursuant to Rule 23,
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`subdivisions (a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure, on behalf of the
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`following National Class and California Class (collectively, the “Classes”):
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`National Class:
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`All persons who purchased a Protected Product on eBay.com on or after
`February 4, 2020, at a price 10 percent greater than the price charged on
`eBay.com, for the same Protected Product (a) on February 2, 2020, or (b)
`immediately prior to any declaration of a State of Emergency relating to the
`COVID-19 crisis.
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`California Class:
`All persons who purchased in California a Protected Product on eBay.com on or
`after February 4, 2020 at a price 10 percent greater than the price charged on
`eBay.com for the same Protected Product (a) on February 2, 2020, or (b)
`immediately prior to any declaration of a State of Emergency relating to the
`COVID-19 crisis.
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`“State of Emergency” is defined in the Classes as any emergency relating to
`COVID-19 or the novel coronavirus declared by (a) the President of the United
`States, (b) the Governor of California, or (c) any official, board, or other
`governing body vested with authority to make that declaration in any county or
`city of California. States of Emergency were declared on at least the following
`dates: February 3, 2020 (Santa Clara County, California); March 4, 2020
`(California, Governor Newsom—extended through September 4, 2020 per
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`14 https://www.nasdaq.com/articles/ebay-ebay-q1-earnings-and-revenues-top-estimates-2020-04-29
`(last accessed May 3, 2020).
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`-11-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
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`
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`

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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 12 of 19
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`Executive Order N-44-2015 dated April 3, 2020); March 13, 2020 (United States,
`President Trump).
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`“Protected Product” is defined in the Classes as all consumer food items or goods,
`goods or services used for emergency cleanup, emergency supplies, medical
`supplies, home heating oil, building materials, housing, transportation, freight,
`and storage services, or gasoline or other motor fuels. See Cal. Penal Code §
`396(b).
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`30.
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` Plaintiff reserves the right to revisit the Class definition based upon information
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`learned through discovery. Plaintiff further reserves the right to amend this Complaint to join
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`additional plaintiffs asserting additional claims on behalf of other state-only classes.
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`31.
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`Excluded from the proposed Classes are Defendant eBay; Defendant’s affiliates and
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`subsidiaries; Defendant’s current or former employees, officers, directors, agents, and
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`representatives; and the district judge or magistrate judge to whom this case is assigned, as well as
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`those judges’ immediate family members.
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`32.
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`Numerosity: There are thousands of members of each of the Classes, which are thus
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`so numerous that joinder of all members is impracticable. The precise number of Class members is
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`not available to Plaintiffs at this time, but the identities and addresses of the members of these
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`Classes can be readily ascertained from business records maintained by eBay.
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`33.
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`This action may appropriately proceed as a class action because Plaintiff seeks
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`equitable relief that will apply to the Class as a whole and, further, because Plaintiff will prove the
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`elements of their damages claims with predominantly common evidence.
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`34.
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`Commonality and Predominance: Numerous questions of law and fact are
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`common to the claims of the Plaintiffs and members of the proposed Class, and these common
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`questions predominate over any questions affecting only individual Class members. These include,
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`but are not limited to:
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`(a) Whether products were offered and sold on the eBay platform at inflated prices in
`California during the COVID-19 pandemic;
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`(b) Whether those prices were in excess of 10 percent on products protected under
`California Penal Code § 396;
`
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`15 See https://www.gov.ca.gov/wp-content/uploads/2020/04/4.3.20-EO-N-44-20-text.pdf
`accessed May 3, 2020).
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`(last
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`-12-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
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`

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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 13 of 19
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`(c) Whether those sales occurred after qualifying declared states of emergency in
`California under California Penal Code § 396;
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`(d) Whether and the extent to which a reasonable consumer would be mislead by eBay’s
`actions regarding the prices charged in those sales;
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`(e) Whether and the extent to which a reasonable consumer would be mislead by eBay’s
`actions regarding its purported screening for and “ban” on price-gouging;
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`(f) Whether and the extent to which consumers in California were and are being harmed by
`eBay’s actions;
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`(g) The extent to which eBay was enriched unjustly by its actions; and
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`(h) Whether Plaintiffs are entitled to injunctive relief and the appropriate scope of any
`equitable relief.
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`35.
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`Typicality: Plaintiffs’ claims are typical of the claims of all Class members
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`because, among other things, all Class members were comparably and similarly injured by eBay’s
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`wrongful conduct alleged herein. Plaintiffs, like all Class members, purchased essential products
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`from eBay at prices that were unlawfully inflated during the COVID-19 pandemic.
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`36.
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`Adequacy: Plaintiff is willing and prepared to serve the Court and the proposed
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`Classes in a representative capacity. Undersigned Counsel have served as Lead Counsel in some of
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`the largest consumer class actions in the country. Plaintiff will fairly and adequately protect the
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`interests of the Classes and has no interests that are adverse to, or which materially and
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`irreconcilably conflict with, the interests of the other members of the Classes. The self-interests of
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`Plaintiff are co-extensive with and not antagonistic to those of absent Class members. Plaintiff will
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`undertake to represent and protect the interests of absent Class members. Plaintiff has engaged the
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`services of counsel indicated below who are experienced in complex class litigation and life
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`insurance matters, will adequately prosecute this action, and will assert and protect the rights of and
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`otherwise represent Plaintiff and the putative Class members.
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`37.
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`Injunctive and declaratory relief: By way of the conduct described in this
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`Complaint, defendant has acted on grounds that apply generally to the proposed Class.
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`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 14 of 19
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`Accordingly, final injunctive relief or corresponding declaratory relief is appropriate respecting the
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`Class as a whole.
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`38.
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`Superiority: A class action is superior to all other available methods for the fair
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`and efficient adjudication of this controversy, and no unusual difficulties are likely to be
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`encountered in its management. Even if members of the proposed Class could sustain individual
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`litigation, the injuries suffered by individual Class Members are, though important to them,
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`relatively small compared to the burden and expense of individual prosecution needed to address
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`eBay’s conduct. Individualized litigation presents a potential for inconsistent or contradictory
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`judgments. In contrast, a class action presents far fewer management difficulties; allows the
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`hearing of claims that might otherwise go unaddressed; and provides the benefits of single
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`adjudication, economies of scale, and comprehensive supervision by a single court.
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`39.
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`Nature of Notice to the Proposed Classes. The names and addresses of all Class
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`Members are contained in the business records maintained by eBay and are readily available to
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`eBay. The Class Members are readily and objectively identifiable. Plaintiffs contemplate that
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`notice will be provided to Class Members by e-mail, mail, and published notice.
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`CLAIMS FOR RELIEF
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` FIRST CAUSE OF ACTION
`VIOLATION OF CALIFORNIA’S UNFAIR COMPETITION LAW
`(CAL. BUS. & PROF. CODE § 17200)
`(on behalf of Plaintiff and the California Class)
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`40.
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`Plaintiff repeats and realleges the allegations in paragraphs 1–39 as if set forth
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`herein in full.
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`41.
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`California’s Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code §§ 17200, et
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`seq., proscribes acts of unfair competition, including “any unlawful, unfair or fraudulent business
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`act or practice.”
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`42.
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`Any violation of California Penal Code § 396 “constitute[s] an unlawful business
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`practice and an act of unfair competition within the meaning of Section 17200 of the Business and
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`Professions Code.” Cal. Penal Code § 396(i).
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`-14-
`CLASS ACTION COMPLAINT FOR VIOLATIONS OF CAL. CIV. CODE § 1750 et. seq. (“CLRA); CAL. BUS.
`& PROF. CODE § 17200
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`

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`Case 5:20-cv-03053-SVK Document 1 Filed 05/04/20 Page 15 of 19
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`43.
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`As set forth herein, eBay violated California Penal Code § 396(b) because, after
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`states of emergency were declared in California in relation to COVID-19, eBay offered to sell and
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`sold essential items—like N-95, N-100 and surgical masks; hand sanitizer and gel; disinfectants
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`like Lysol; disinfecting wipes; toilet paper; gloves; paper towels; baby formula; baby wipes;
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`tampons; and diapers—at prices “10 percent greater” than the price eBay charged “immediately
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`prior to the proclamation or declaration of emergency.” Cal. Penal Code § 396(b). These
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`Protected Products eBay sold or offered to sell at statutorily excessive prices constitute “consumer
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`food items or goods, goods or services used for emergency cleanup, emergency supplies, medical
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`supplies, home heating oil, building materials, housing, transportation, freight, and storage services,
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`or gasoline or other motor fuels.” Id.
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`44.
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`On information and belief, the increased prices paid for the Protected Products
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`offered and sold on the eBay platform were not directly attributable to additional costs imposed on
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`eBay by the suppliers of the Protected Products, and eBay offered and sold many Protected
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`Products in excess of 10 percent even when accounting for any additional costs and the markup
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`eBay customarily applies to the Protected Products. § 396(b).
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`45.
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`All products available on eBay.com are offered for sale or sold by eBay, and thus
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`eBay is liable under California Penal Code § 396(b), and the UCL, for all unlawful prices on its
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`platform. Consumers purchasing third-party supplied products interact almost exclusively with
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`eBay, which, functioning as the seller for the purposes of §