.-!

(1)

Case 8:13-cv-01028-JVS-RNB Document 1 Filed 07/10/13

Page

1 of36

Page

ID #:1

1

Jeffrey

R. Krinsk

(CA

Bar No.

109234)

•[email protected].

2 -MailcL. Knutson

(CA

Bar No.

131770)

[email protected]

3 WilliamR. Restis

(CA

Bar No.

246823)

wrr(classactionlaw.com.

4 FINKELSTEIN & KRINSKLLP, 0

501 West

Broadway,

Suite 1250 a.—

5 San

Diego,

California 92101-3579 .-4.,c f---,

:10, c....

Telephone: (619)

238-1333

6 Facsimile:

(619)

238-5425 ;:::t, -71

:c:;

F

7

Attorneys

for Plaintiff :0 "P13

Amira Anderson

8

67.1-2

4-9 UNITED STATES DISTRICT COU T

.-!.1

al

10 CENTRAL DISTRICTOF CALIFORNIA

11 SOUTHERN DIVISION

12 AM1RA

ANDERSON, individually

and Case No. SACV134028

JVS(RNI34

on behalf of all other

similarly

situated

13 California

Residents,

CLASS ACTION COMPLAINT

FOR:

14

Plaintiff,

(I)

BREACH OFCONTRACT

15

(2)

BREACII OF EXPRESS

WARRANTY

16

(3)

BREACUI OF IMPLIED

v. WARRAATY

17

(4)

SONG-BEVERLY

SAMSUNG TELECOMMUNICATIONS WARRANTY ACT

18

AMERICA, LLC,

a Delaware Limited

(5)

MAGNUSON-MOSS

Liability Company,

WARRANTY ACT

19

(6)

VIOLATIONOF

CALIFORNIA'S UNFAIR

20 Defendant. COMPETITION LAW

71

JURY TRIAL DEMANDED

9.) 23 24 25 26 27 28

(2)

8:13-cv-01028-JVS-RNB Document 1 Filed 07/10/13

Page

2 of36

Page

ID #:2

1 Plaintiff Amira Anderson

("Plaintiff')

alleges

as to herselfbased on her own

2

experience,

and as to all other

allegations,

based _{upon the}

investigation

of

counsel,

3 which

included,

inter

alia,

a review of

complaints,

reports,

advisories,

_press

releases,

4 and media

reports

about defendant

Samsung

Telecommunications

America,

LLC

5

("Samsung"

or

"Defendant").

6 NATURE OF THE ACTION

7 1. Plaintiff

brings

this action

against

defendant

Samsung

on behalf of

8 California

residents,

who

purchased

adefective

Samsung

Galaxy

S mobile

phone.

9 2. Defendant's

Galaxy

S mobile

phones

suffer from a software or hardware

10

defect,

which causes the

phones

to

randomly

freeze,

shut

down,

and

power-off

while 11 in

standby

mode,

rendering

the

phones

inoperable

and unfit for their intended use

12 _{and purpose.}

13 3. After

Samsung

released the

Galaxy

S

phones

during

the summer of

14

2010,

consumers

immediately

contacted

Samsung

and

Samsung's

authorized

agents

15 and resellers to

complain

about the defect. Consumers also have

posted myriad

16

complaints

about the defect on Internet

websites,

including

on

Samsung's

own

17 website.

Samsung

has admitted such a defect and

suggested

several alternate

18 remedies to consumers, all without success.

19 4. Plaintiff

repeatedly

attempted

to have her defective

phone repaired

or

20

replaced

under

Samsung's

warranties

prior

to

filing

this action.

21 5.

Instead,

Samsung

and its authorized

agents

and resellers

provided

Class

22 members with ineffective and

damaging

"software

updates"

and

phone

resets and

23

replacement

Galaxy

S

phones suffering

from the same defect. This

inadequate

24 _{response has}

only

perpetuated

an endless

cycle

of

futility

for Plaintiffand for Class

25 members and has not cured the defect or

provided

Class members a

product

that

26 conforms to _{all express and}

implied

warranties.

27

28 _{CLASS ACTION COMPLAINT} _Page_I1 FINKELSTEIN& KRINSK LLP

501 West_Broadway,Suite 1250 San_Diego, California 92101

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Page

ID #:3

1 6. Defendant

Samsung

and its authorized

agents

and resellers have been

2 unable or

unwilling

to

repair

the defect or offer Plaintiffand Class members a

non-3 defective

Samsung Galaxy

S

phone

or reimbursement for the cost of such

phone.

4 7. Defendant

Samsung

knew or should have known of the defect

prior

to

5

selling

or

placing

the

Samsung

Galaxy

S

phones

into the stream ofcommerce such

6 that its failure to

comply

with these

warranty

obligations

was willful.

Despite

7

knowing

of the defect

shortly

after

introducing

the

phones

into the

market,

Samsung

8 and its authorized

agents

and resellers continued to sell and distribute the defective

9

phones

to Plaintiffand Class memberswithout

warning

or disclosure of the defect.

10 8. Plaintiff and Class members suffered

injury

_{and lost money} or

property

11 as a result of

purchasing

a

phone

that

repeatedly

shuts off and loses

data,

purchasing

12 a new

phone just

to ensure the

ability

to receive

communications,

and

having

13

expended

time and resources

addressing

this issue with

Samsung

or its

14

representatives

without success.

Samsung

failed to

remedy

this

harm,

and

Samsung

15 earned and continues to earn substantial

profits

from

selling

defective

Galaxy

S

16

phones.

17 THE PARTIES

18 9. Plaintiff Amira Anderson is an individual and is a California

citizen,

19 who at all relevant times resided in San

Diego

county,

California. On or about

20

September

29, 2011,

Anderson

purchased

a

Samsung

Galaxy

S Vibrant

through

T-21

Mobile,

acting

as

Samsung's

authorized

agent

and reseller. Soon after Plaintiff

22

purchased

her

Galaxy

S

phone,

she

experienced

the defect

alleged

within all

23

warranty

periods.

Prior to Plaintiff's

purchase

of the

Galaxy

S,

she was unaware of

24 the defect and defendant

Samsung

failed to warn or disclose the defect to Plaintiff.

25 Had

Samsung

disclosed such material

facts,

Plaintiff would not have

purchased

the 26

Galaxy

S. Plaintiff

repeatedly

tried to resolve the defect

prior

to

filing

this

action,

all

27 of which failedto

remedy

the defect she

consistently experienced.

(4)

Page

4 of36

Page

ID #:4

1 10. Defendant

Samsung

Telecommunications

America,

LLC is a Limited

2

Liability

Company

incorporated

under Delaware law. Defendant's

principal place

of

3 business is in

Richardson,

Texas.

Samsung

designed,

manufactured,

distributed and

4 sold consumer electronic

products, including

the defective

Samsung

Galaxy

S

5 mobile

phones.

6 11. Whenever this

complaint

refers to _any act of defendant

Samsung,

the

7 reference shall mean

(1)

the acts of the

directors,

officers,

employees,

affiliates,

or 8

agents

of defendant who authorized such act while

engaged

in the

management,

9 direction or control of the affairs of

defendant,

or at the direction of

defendant,

and

10

(2)

_{any persons who} are the

parents

or alter egos of

defendant,

while

acting

within

11 _{the scope of their agency,}

affiliation,

or

employment,

and

(3)

_{any persons who} acted

12 as authorized

agents

and resellers for defendant of the

phones

in

question.

13 JURISDICTION AND VENUE

14 12. The court has

jurisdiction

over the lawsuit under 28 U.S.C.

1332(d),

15 the Class Action Fairness

Act,

because this suit is a class

action,

the

parties

are

16

diverse,

and the amount in

controversy

exceeds

$5

million,

excluding

interest and 17 costs.

18 13. _{Venue is proper in this district under 28 U.S.C.}

1391(b)(1)

because

19 Defendant is

subject

to the Court's

personal

jurisdiction by

selling

the

Samsung

20

Galaxy

S

phones

in this District

through

its authorized

agents

and

resellers,

and

by

21

placing

the

Galaxy

S

phones

in the stream of commerce in this District. Venue is

22 _{also proper in this District}because this lawsuit is relatedto a

pending

matter Carwile

23 v.

Samsung

Telecommunications

America,

LLC,

No. 2:12-cv-05660-CJC-JPR 24

pursuant

to Civ.L.R.

83-1,

and is transferrable to this District under 28 U.S.C. 25

1404(a).

26 27

28 _{CLASS ACTION COMPLAINT} _Page₁₃ _{FINKELSTEIN & KRINSK LLP} 501 West_Broadway,Suite 1250

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Page

ID #:5

1 FACTUAL ALLEGATIONS

2 14. Since

approximately

Summer

2010,

defendant

Samsung

has

marketed,

3

distributed,

and warranted the

Samsung

Galaxy

S mobile

phones

in California and 4

throughout

the United States.

5 15.

Samsung's

Galaxy

S mobile

phones

suffer from a

defect,

which

6 manifested

during

the

warranty

period

and useful life of such

phones.

The defect

7 causes the

phones

to

freeze,

shut

down,

and

power-off randomly

while in

standby

8

mode,

rendering

the

phones inoperable.

9 A.

Samsung Galaxy

S mobile

phone product

line

10 16.

Samsung

produces

a line of cellular

phones

called the

"Samsung

Galaxy

11

S,

which uses the

Google

Android

operating

system.

Samsung's

line of

Galaxy

S

12

phones

includes the

Captivate

for

AT&T,

the Vibrant for

T-Mobile,

the

Epic

4G for 13

Sprint,

and the Fascinate for Verizon. These are all

essentially

the same

phones, just

14 with differentnames.

15 17. Each

phone

in the

Samsung Galaxy

S

product

line is a

"smartphone."

16

Smartphones

are cellular

phones

that run on an

operating

system

and can run

17

applications.

18 18. Each

phone

in the

Galaxy

S

product

line has

essentially

the same

19

product

features,

including

a 4-inch

"Super

AMOLED"

display,

a 1 GHz

20

"Hummingbird"

_{Cortex A8 processor,} a

5-megapixel

auto-focus _camera, and the 21

ability

to

display

HD video. The defect occurs in each ofthese

phone

models across 22

phone

carrier

lines,

and similar

reports

of the same defect have been made from 23

Europe

involving

the same

phone

line,

such that the defect is not related to _any

24

particular

carrierthat distributes the

phone.

25 B. The

Samsung Galaxy

S mobile

phone

defect

26 19. Soon after the

Samsung

Galaxy

S models were released in Summer

27

2010,

consumers

lodged complaints

about their

experiences

with the defect.

(6)

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Page

ID #:6

1 Thousands of consumer

complaints

about the defect were

posted

online. Defendant

2 continued to market and sell these

phones

without

curing

the defect or

disclosing

its

3 existence to consumers.

4 20. These

complaints

all

identify

the same essential defect. When a

5

smartphone

is

powered

on but is not

being actively

used,

it is in

"standby

mode" to

6 extend

battery

life. The defect occurs when consumers cannot wake their

phones

7 from

standby

mode. Non-defective

phones

should wake from

standby

mode and

8 return to normal

operating

function

by pushing

_{any button} on the

phone

or when a

9 call or text _message comes in on the

phone.

While in

standby

mode, however,

the

10

Samsung

Galaxy

S

phone

freezes or _powers itself

off,

meaning

it cannot receive or

11 deliver

telephone

calls,

_messages or data. Unless one is

constantly monitoring

their

12

phone

to know whether it is on,

they

would not know when the

phone

is

actually

off

13

except

when

trying

to use it.

14 21. To

operate

a

phone

that

experiences

the

defect,

a consumer must

15 remove the

battery

from the

Galaxy

S

phone,

reinsert

it,

and power the

phone

back

16 on.

Pressing

the power button is futile because the

phone

does not_power onwithout

17 first

removing

and

reinserting

the

battery.

18 22. The defect occurs

randomly

and

repeatedly, causing

the

phone

to freeze

19 or_{power off while in}

standby

mode,

as _many as ten _{times per}

day.

Oncethe

phone

is

20

powered

back on, it is still

susceptible

to

powering

itself back off and

losing

data.

21 23. The defect also causes the

phone

to reset while the

phone

is

being

used

22 to make calls. While a consumer is

speaking

on the

phone,

it will reset itself

during

23 the call and make the

phone

unusable while it is

restarting.

24 24.

Although

numerous consumers

reported

the defect to

Samsung

and its

25 authorized

agents

and resellers soon after its

release,

Samsung

failed to

notify

26 _consumers,

including

Plaintiff,

about the defect

prior

to orafter

purchase.

27

28 _CLASS_{ACTION COMPLAINT} _{Page I}5 FINKELSTEIN& KRINSK LLP

501West_Broadway,Suite 1250 California 92101

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ID #:7

1 25. _{The defect's presence is material because}the defect causes the

phones

to

2

repeatedly

freeze or turn

off,

causing

Plaintiff and Class members to miss

phone

3

calls,

alerts,

_messages,

e-mails,

and

alarms,

and

frequently

lose data due to the

4 defect.

5 26. The defect is material because neither

Plaintiff,

Class

members,

nor _any

6 reasonable consumer wouldhave

purchased

the defective

Samsung

Galaxy

S mobile

7

phones

had

they

known of the

defect,

and such

phones

would not _{pass without}

8

objection

inthe trade or

industry.

9 27. As evidence of the

significance

of the

defect,

_many consumers have

10

opted

to _{pay additional} and substantial fees to either

purchase

a new

phone

at full 11 retail

price,

or have

paid early

termination fees to

purchase

a new

phone.

Many

12 consumers found that

paying

those substantial fees was the

only

_way to obtain full

13 relieffrom theirdefective

Samsung Galaxy

S

phones.

14 C. Plaintiff

repeatedly

tried to

repair

her defect

Samsung Galaxy

S

phone

prior

to

initiating

this action 15

16

28. Plaintiff

purchased

a

Samsung

Galaxy

S Vibrant on or about December

17

September

29,

2011. Like other class

members,

Plaintiff's

phone began

to

18

experience

the defect

shortly

after

purchase.

Plaintiff

repeatedly

called Defendant's

19

authorized

phone

service

faciliy

T-mobile to have her

phone repaired

or

replaced,

as

20

it was under

warranty.

Each

time,

Samsung's

authorized

agents

at T-mobile

21

instructed Plaintiff to do "master resets" of her

Galaxy

S

phone,

none of which

corrected the Defect. 22

23

29. Then in

July

2012,

Plaintiff surrendered her

Galaxy

S

phone

to

24

Samsung's

authorized

agent

T-mobile recieved a

replacement

Galaxy

S under

25

Samsung's

Warranty.

That

phone similarly

experienced

the

defect,

and so Plaintiff 26

surrendered her second

Galaxy

S

phone

to T-mobile under

Samsung's Warranty

for 27

a third

replacement Galaxy

S in

January

2013. Anderson's third

Galaxy

S

similarly

experienced

the Defect.

(8)

Page

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Page

ID #:8

1 30. Plaintiff surrendered her third defective

Galaxy

S

phone

to T-mobile in

2

April

2013 under

Samsung's Warranty,

obtaining

a fourth

Galaxy

S

phone.

That

3

phone

also

experienced

the Defect. Plaintiff became

exasperated

at

Samsung's

4

inability

to

provide

her with a

working Galaxy

S

phone,

and concluded that the

5

Galaxy

S

phones

were

beyond repair

and gave up on further efforts to let

Samsung

6

provide

a

working Galaxy

S

phone.

7 31. In

May

2013,

Plaintiffupgraded

to a

Samsung

Galaxy

SIII,

selling

her 8 fourth defective

Galaxy

S

phone

to the electronics merchant Best

Buy

in La

Mesa,

9 California for

$60.00.

10 32. Plaintiffs

phones

experienced

the defect

during varying

states of use,

11 and such variables as whether the

phone

was

charging, loading

an

application,

or

12

sitting

in

standby

did not affectwhetherthe defect would occur.

13 33. Plaintiff

experienced problems resulting

from the defect in her

Samsung

14

Galaxy

S Vibrant

phone

within all

warranty

periods.

_{A copy of}

Samsung's

warranty

15 for the

Galaxy

S

vibrant,

as downloaded from

Samsung's website,

is attached hereto

16 as Exhibit

A.1

17 34. At the time of

purchase,

Plaintiff was unaware of the

defect,

and

18 _{Plaintiff has lost money} or

property

and suffered

injury

in a manner similar to other

19 Class members. If the facts known to Defendant about the defect had been disclosed

20 to

Plaintiff,

she would not have

acquired

that

phone

and entered into the associated 21 contract atthe

prices paid,

ifat all.

22 D.

Samsung

fails to

provide

an

adequate remedy

23 35.

Samsung

knows its

Galaxy

S mobile

phones

suffer from a defect that 24 causes the

phones

to

regularly

freeze, crash,

and shut

down,

and

yet

it still continued

25 to market and sell these

phones

even

though

it cannot

repair

them or offer a

26

27 1

http://downloadcentensamsung.com/content/UM/201103/20110330033407895/T-Mobile_T959_Vibrant_English_User_Guide.pdf

28 _{CLASS ACTION COMPLAINT} _{Page 17} FINKELSTEIN&KRINSK LLP

501 West_Broadway,Suite 1250 California

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1

replacement phone

that does not suffer from the defect or reimburse consumers the 2 amounts

they

paid

for such

phones,

such that its conduct is willful.

3 36.

Samsung

has failed to cure the defect or

replace

Plaintiff's

Samsung

4

Galaxy

S

phone

with a non-defective

phone

and offer full

compensation required

5 under federal and state law.

6 37. When consumers contacted

Samsung

and its authorized

agents

and

7 resellers to

complain

about the

defect,

Samsung

denied there was _{any defect with}

8 their

Galaxy

S

phones.

9 38. Plaintiff contacted a

Samsung

"authorized

phone

service

facility"

to

10

repair

or service her defective

phone

as

Samsung

maintains no direct

repair

facilities

11 in this state, or in any state other than

Texas,

nor

provides

_{any list of such facilities}

12 on its website or to its retail sellers as

required by

law.

Samsung's

_express

warranty

13

represents

to customers

they

_{may do} so or

alternatively

call

Samsung

customer care 14 to "obtain assistance on where to deliver the

product"

for

servicing

or

repair.

15 39.

Samsung's

warranty

does not

specify

what constitutes an "authorized 16

phone

service

facility."

However,

it was

Samsung's

custom to inform customers to

17 take their

phones

to their local

phone

carriers for service.

18 40. As

Samsung

fails to

provide

service and

repair

facilities in this state, 19 and because its written

warranty

does not

specify

what constitutes an "authorized 20

phone

service

facility,

Samsung's

and the retail seller's actions shows that under all 21

applicable

laws and as a reasonable construction of such

warranties,

phone

carrier

22 entities are

phone

service facilities authorized

by

Samsung

for _{purposes of}

23

compliance

_{with any express}

warranty

obligations.

By

contacting

or

sending

her

24

phone

to her

phone

carrier for service or

repair

of the

defect,

Plaintiff

complied

with 25 _any

warranty's

preconditions

based on how the term "authorized

phone

service 26

facility'

has been

applied

and used

by

Samsung.

27

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Case1p:13-cv-01028-JVS-RNB

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Page

ID #:10

1 41.

Therefore,

Plaintiff and Class members

complied

_{with any express} 2

warranty

preconditions by returning

their defective

phones

to their

phone

carrier for 3

repair

and service.

4 42. Plaintiff and Class members have made reasonable numbers of

repair

5

attempts,

thereby giving pre-lawsuit

notice of the defectto

Samsung.

6 43. Defendant's

policy

of

replacing

one defective

phone

with another

7 defective

phone

fails to offer consumers a viable

remedy,

but instead

only

8

perpetuated

Plaintiffs and Class members'

damages.

Samsung

has refused to refund

9 the cost of the

phone

and all related costs or

provide

consumers non-defective

10

replacement Galaxy

S

phones.

11 44. Defendant

Samsung

has denied its

Galaxy

S

phones

have

experienced

12 the defect

despite

thousands of

public

complaints

from consumers across

phone

13 carriers and the

Galaxy

S

product

line.

14 E.

Samsung

had notice of the defect as consumers

posted complaints

on

Samsung's

website 15

16

45. Consumers have

posted

thousands of

complaints

about the

Samsung

17

Galaxy

S defect on dozens of online

support

and

technology

forums,

including

on

18

Samsung's

own website.

Examples

of these

complaints

are set forth below. As

19

evidenced

by

these comments,

Samsung

was made aware of this defect as

early

as

20

the Fall 2010 if not

earlier,

yet

failed to

stop

selling

these

phones

and failed to

provide

a fixto resolve the defect. 21

CONSUMER COMPLAINTS FROM SAMSUNG.COM

22

"Why

does my

phone

turnoff

(shut down) during

sleep

mode?"

23 --Samm

24

Link:http ://www.samsung.com/us/supportiowners/product/SEGI897ZKAATT

Date:

September

2010

25

Samsung's Response

to Samm: "Once _your

phone

_{goes in}

sleep

modeorifthe

26 screen wentblack,press the power button locatedonthe

right

side of the

phone

once to

light

_{up the} screen. If after

doing

the_step and the screendoesn't

27

light

up then youcan _go to_{your service}

provider

so

they

cancheck the

phone

foryou.You mayalso call Samsune Customer Support. so we cando minimal

28 CLASS ACTIONCOMPLAINT _Page₁₉ FINKELSTEIN & KRINSK LLP 501 West_Broadway,Suite 1250

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Casq18:13-cv-01028-JVS-RNB

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1

troubleshooting

to_your

phone.

Once

troubleshooting

has been done tothe

point

ofactual failure,we can _setupa

repair

onthe

product.

should it be

2 determined the

problem

cannotbe resolvedoverthe

phone.

Wecan

repair

the

phone.

if it is still under_warrantyand hasnotbeen

physically damaged.

For

3

troubleshooting

and

questions

relatedto

possible repairs

we invite you to contact

Samsung

Customer Careat_yourearliestconvenience

through

ourtoll

4 free number 1-888-987-HELP

(1-888-987-4357)." (emphasis added)

--Samsung4

5

Link:http://www.samsung.com/us/support/owners/product/SEGI897ZKAATT

6 Date: November 2010

7 "Whatcauses_my

phone

to

spontaneously

_{shut off? Sometimes I'll check my}

phone

anddiscoverthat it is turned off when itwas onthe last time I checked

8 it. I cannotfinda_pattern tothis behavior, but the

frequency

of this

happening

seemstobe

increasing,

fromonce aweek _to,

recently,

once a

day.

Ialso would

9 liketoknow

why doing

a

factory

resetdidn't fix this

problem.

--benbald72

10

Link:http://www.samsung.com/us/support/owners/product/SGHI897ZKAATT

11 Date:

September

2010

12 "What if my

Captivate keeps

on

shutting

off

by

itself?

My phone

was

lying

on my desk for aboutanhourand i come back andseethat itwasturned off. Then

13 iturn it backon andcome backatanother short interval

only

tofindoutthat

my

phone

wasturnedoff

again,

this has

happened consistently

overthe_past

14 few

days.

and i needto know if this will bea

problem

with my

phones

reliability.

Iam a_very

busy

_{person and i need}toknow that ican

rely

on_my

15

phone

sothat my

family

_{may reach}meatall times. My

phone

is

only

a_week old. and this

problem

appeared approximately

three

days

ago."

16

--captivateuser

17

Date:

September

2010

18

"Samsung

Galaxy phone randomly

shuts off.

Battery

is

fully

charged

_{but my}

19

Samsung Galaxy

phone randomly

shuts off.

Battery

is seated

properly

and

fully charged. Changing display

timeout

settings

doesn't

help

the situation."

20

--anyadorst

21 Link:

http://www.samsung.com/us/support/owners/product/SEG

I897ZKAATT

22 Date: October 2010

23 "Phone

keeps shutting

off. 4-5 timesa

day

_my

phone

will

completely

shut off on its own. Isthere

anything

Icandoto_preventthis?" --snrrendondo

24

25 Date: October 2010

26

"Why

the heck does the

phone

shut down. without

warning.

daily?

The freakin'

phone just

shuts off. while I'm on acall. over

night,

or

just

_{any of time?! The}

27 worst

thing

about it is. that I don't know the darn

thing

is off, soI can'ttake anyactiontocorrectit! Howmanycalls have I missed?Doesthe Phonestill

(12)

CaseH8:13-cv-01028-JVS-RNB

Page

12 of36

Page

ID #:12

1 list them as "missed Calls" ordo

they just

_go _away, lost forever? Iusethis

phone

for_mybusiness. A missed callcancostmethousands!!! Iwantthis

2 fixedor

replaced

IMMEDIATELY! Youknow how to contactme. If you can't fix_it,

just

sendme a

Blackberry

Torch!!"

3

--boogiemonster

4

Date: November 2010

5

"How do I

keep

_myFascinate from

turning

off? My

phone

keeps shutting

off. I

6 cannot_get itto_stayon for any

period

of time if Iam not

using

it. Is thisa

special

function? Iwant to answer_my

phone

when

phone

call and Icannotdo

7 that if it continuestoshut off. My friend and I _gotthesame

phones

atsame time and she is

having

same

problem.

so theremustbe a_wayto

keep

the

8

phone

on.

right?

theremustbeafunctionto

keep

the

phone

on so Ican answer

mycalls without

going

tovoicemai I. thankyou foryour

help!"

9 --BE649

10

Link:http://www.samsung.com/us/support/owners/product/SCHI5OORKLVZW

Date: December 2010

11

"My

phone

shuts off afterashort timeon itsown. My

phone

turnsall

12 the_wayoff after afew minutes ofnot

being

used. The

battery

_{power is fine} and I don'tsee _anyother reason

why

it would do this. Iam_very _upsetbecause

13 I

keep missing

calls_{and messages from}

people

becauseIthink it is onbut it hasshut itself off."

14

--cherylchoenstein

15 Link:

http://www.samsung.com/us/support/owners/product/SEGI897ZKAATT

16

"Why

doesmy

Samsung

Captivate keep shutting

off?My

phone just randomly

shuts down. itcanbe

sitting

on atable and 10 minutes later i haveto

pull

the

17

battery

andreconnect to _getit back

working.

Istherea recall onthis? and ifso how to_{i go about}

fixing

it.most

nights

i set_myalarmas i useittowake and

18 most

mornings

its

completely

turned off

again.

Ican have 60%

battery

and it still

happens.

I've

already

been latetoworkseveral times because of this

19

problem.

which isn't

good"

--charbonnet81

20

21 Date:_January2011

22 *Somesnellinaerrorshave beencorrectedtoensureclarity.

23 24 25 26 27

28 _{CLASS ACTION COMPLAINT} _Page_I 11 FINKELSTEIN & KRINSK LLP 501West_Broadway,Suite 1250

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Page

ID #:13

1 CLASS ACTION ALLEGATIONS

2 46. Plaintiff

brings

this class action claim under Rule 23 of the Federal

3 Rules ofCivil

Procedure,

onbehalf of the

following

Class:

4 All persons

who,

while

residing

in California since

January

1, 2010,

purchased

one or more

Samsung Galaxy

S mobile

phones

from

Samsung

5 or its authorized retailer sellers and

experienced

a software or hardware

defect,

which causes the

phones

to

randomly

freeze,

shut

down,

and 6

power-off,

or are

likely

to

experience

the defect

during

the useful life of

the

phone.

7

8 Excluded from the Class are all

governmental

entities,

Defendant herein and any

9 _person,

firm,

_trust,

corporation,

or other

entity

related to or affiliated with any

10

defendant,

as well as _any

judge, justice

or

judicial

officer

presiding

overthis matter 11 andmembers oftheir immediate families and

judicial

staff.

12 47. Plaintiffreserves the

right

to amend or

modify

the Class definition for a

13 class certification

motion,

or with

discovery

or

investigatory

results. This lawsuit is

14

properly brought

as a class action forthe

following

reasons.

15 48. The Class is so numerous that

joinder

of the

proposed

individual Class

16 members is

impracticable.

The Class includes thousands _{of persons}

geographically

17

dispersed throughout

California. The

precise

number and identities ofClass members

18 are unknown to

Plaintiff,

but are known to

Samsung

and can be ascertained

through

19

discovery, namely

by using Samsung's

records of

sales,

warranty

records,

and other

20 information

kept by

Samsung

or

by

Samsung's

agents.

21 49. Plaintiff

anticipates

no difficulties in

managing

this

litigation

as a class

22 action. The Class is ascertainable. There is a well-defined

community

of interest in

23 the

questions

of law and

fact,

since the

rights

ofeach Class memberwas

infringed

or 24 violated in similar fashion _{based upon}

Samsung's

misconduct. Notice can be 25

provided

via records maintained

by

Samsung

through

mailed and electronic notice 26 and

publication,

the cost of which is

properly imposed

_upon

Samsung.

27

(14)

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ID #:14

1 50.

Questions

oflaw and fact common to the Class exist as to Plaintiffand

2 Class members. These common law and fact

questions predominate

over _any

3

questions affecting only

individual Class members in that

answering

these

questions

4 will determine at one time

Samsung's

liability

forthe conduct

alleged.

The common

5

questions

of law and fact include:

6

a)

whetherdefendant

Samsung's

Galaxy

S

phones

are

defective;

7

b)

whether

Samsung

failed to disclose material facts aboutthe defect in its

8

Samsung

Galaxy

S

phones

and when

Samsung

learned of such material

9

facts;

10

c)

whether

Samsung

_{made any express warranties in its sale of the}

11

Samsung

Galaxy

S

phones;

12

d)

whether

Samsung

_{made any}

implied

warranties in its sale of the

13

Samsung

Galaxy

S

phones;

14

e)

whether

Samsung

_{breached any express} or

implied

warranties

relating

15 to its sale of

Samsung

Galaxy

S

phones;

16

f)

whether

Samsung

was

unjustly

enriched

by selling

defective

Samsung

17

Galaxy

S

phones;

18

g)

whether

Samsung

violated consumer

protection

laws

by selling

19 defective

phones

or

by failing

to disclose the

defect;

20

h)

the

appropriate

nature of class-wide

equitable

relief;

and

21

i)

the

appropriate

measure ofrestitution and

damages

to award to Plaintiff

22 andto theClass.

23 51.

Samsung

engaged

in common conduct

establishing

the

legal rights

24

sought

to be enforced

by

Plaintiff and the Class. Individual

questions

pale by

25

comparison

to thenumerous common

questions

which

predominate.

26 52. Plaintiffs claims are

typical

of the claims of Class members. The

27

injuries

sustained

by

Plaintiff and the Class

flows,

in each

instance,

from a common

28 _{CLASS ACTION COMPLAINT} _{Page 113} FINKELSTEIN& KRINSK LLP 501 West_Broadway,Suite1250

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Page

ID #:15

1 nucleus of

operative

facts based on defendant

Samsung's conduct,

as

alleged.

2 Defendant

Samsung's

defenses asserted

against

Plaintiffs claims

likely

would be

3 similarto

Samsung's

defenses asserted

against

Class members' claims.

4 53. Plaintiff will

fairly

and

adequately

protect

Class members' interests.

5 Plaintiff has no interests

materially

adverse to or that

irreconcilably

conflict with

6 Class members' interests and Plaintiff has retained counsel with

significant

7

experience

in

prosecuting

class actions and

complex litigation,

and who will

8

vigorously

prosecute

this action.

9 54. A Class action is

superior

to other available methods for the fair and

10 efficient

group-wide adjudication

of this

controversy,

and individual

joinder

of all

11 Class members is

impracticable,

ifnot

impossible

_{because many Class members} are 12 located

throughout

California. The cost to the court

system

of such individualized 13

litigation

would be substantial. Individualized

litigation

would likewise

present

the 14

potential

for inconsistent or

contradictory judgments

and would cause

significant

15

delay

_{and expense} to all

parties

and

multiple

courts

hearing virtually

identical

16 lawsuits.

Managing

this action as a class action

presents

few

management

17

difficulties,

conserves

litigant

and court resources,

protects

each Class member's 18

rights,

and maximizes their _recovery.

19 55.

Samsung

has acted on

grounds

applicable

to the entire

Class,

making

20 final

injunctive

relief or

corresponding declaratory

relief

appropriate regarding

the

21 Class as awhole.

22 COUNT I

23 Breach ofContract

24 56. Plaintiff

incorporates

the above

allegations

by

reference as if

fully

set

25 forth below.

26 57. Plaintiffasserts this count

individually

and for the

proposed

Class.

27

(16)

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Page

ID #:16

1 58. Defendant

Samsung

made

promises

and

representations

to all

2 consumers, which became the basis of the

bargain

between

Plaintiff,

Class

members,

3 and

Samsung.

Defendant

Samsung

_{gave these express}

representations

to Plaintiffand

4 Class members

accompanying

the sale of its

Samsung

Galaxy

S

phones.

5 59. Defendant

expressly

promised

Plaintiff and Class

members,

that these

6

phones

were

effective,

free from defects in materials and

workmanship,

and fit for

7 their intended use. The

representations

included with Plaintiff and Class members'

8

phones expressly promised Samsung's Galaxy

S Phones were "free from defects in

9 material and

workmanship

under normal use and service" for one _{year from}

10

purchase, covering

defects in bothhardware and software.

11 60.

Samsung's

Galaxy

S

phones

failed to

comply

_{with defendant's express}

12

representations

because the

phones

suffer from a

defect,

which causes the

phones

to

13

freeze,

shut

down,

and

power-off randomly

while in

standby

mode,

rendering

the 14

phones

unfit for their intended use and purpose.

15 61. Plaintiff

complied

with the

preconditions

to

asserting

a breach of

16 contract claim

by contacting

a

Samsung

authorized

phone

service

facility

to

repair

or

17 service her defective

phone.

18 62. Plaintiff

performed

under her contract with

Samsung

by contacting

and

19

affording

defendant

Samsung

or its

agents

and authorized

phone

service facilities

20 reasonable

opportunities

to

repair

and/or

replace

the defective

phone

with a

phone

21 that did not_possess the defect.

22 63. Defendant

Samsung

breached _{its express}

representations by failing

to

23

repair

the

phones,

failing

to

replace

the defective

Galaxy

S

phones

with

non-24 defective

phones

and refund Plaintiff's and Class members' monies.

25 64. Defendant

Samsung's

breach of contract caused Plaintiff to suffer

26

injuries,

including

the

inability

to use her

phone, paying

for defective

products,

and

27

28 _{CLASS ACTION}_COMPLAINT _{Page I} ₁₅ _FINKELSTEIN_{& KRINSK}_LLP 501 West_Broadway,Suite 1250

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1

entering

into transactions Plaintiff would not have entered into but for

Samsung's

2 acts.

3 65. As a direct and

proximate

result of

Samsung's

breach of _contract,

4 Plaintiffand Class members have suffered

damages

and continue to suffer

damages,

5

including

economic

damages

at the

point

of sale for the difference between the value

6 of the

phones

as

promised

and the value of the

phones

delivered

(essentially

7

worthless).

Plaintiffand Class members either have or will incur economic

damages

8 atthe

point

of

repair

in the cost of

repair

or

replacement

and costs of

complying

with

9 continual contractual

obligations

and the cost of

buying

an additional

phone they

10 would not have

purchased

had the

phones

in

question

not contained the

non-11

repairable

defect.

12 66. Plaintiff and Class members are entitled to

legal

and

equitable

relief

13

against

Samsung,

including damages, specific performance,

rescission, attorneys'

14

fees,

costs of

suit,

and other relief.

15 COUNT II

16 Breach of

Express

Warranty

17 67. Plaintiff

incorporates

the above

allegations by

reference as if

fully

set 18 forth below.

individually

and for the

proposed

Class.

20 69. Defendant

Samsung

and its authorized

agents

and resellers sold

21

Samsung

Galaxy

S

phones

to Plaintiff and Class members in the

regular

course of

22 business. Such

phones

are

goods.

23 70. Defendant

Samsung

made

promises

and

representations

in an _express

24

warranty

provided

to all consumers, which became the basis of the

bargain

between

25

Plaintiff,

Class

members,

and

Samsung.

Defendant

Samsung

_{gave these express}

26 warranties to

plaintiff

and Class members

through issuing

its written

warranty

27

(18)

Case18:13-cv-01028-JVS-RNB

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Page

ID #:18

1

accompanying

its

Samsung

Galaxy

S

phones.

See Exhibit

A,

incorporated by

2 reference.

3 71. Defendant

expressly

warranted to Plaintiff and Class

members,

these

4

phones

were

effective,

free from defects in materials and

workmanship,

and fit for

5 their intended use. The

warranty

included with Plaintiff and Class members'

phones

6

expressly represented

Samsung's

Galaxy

S Phones were "free from defects in

7 material and

workmanship

under normal use and service" for one _{year from}

8

purchase,

covering

defects in both hardwareand software. Exhibit A.

9 72.

Samsung's

Galaxy

S

phones

failed to

comply

_{with defendant's express}

10 warranties because the

phones

suffer from a

defect,

which causes the

phones

to

11

freeze,

shut

down,

and

power-off randomly

while in

standby

mode,

rendering

the 12

phones

unfit for their intended use and purpose.

13 73. Plaintiff

complied

with the

preconditions

to an _express

warranty

claim

14

by contacting

a

Samsung

authorized

phone

service

facility

to

repair

or service her 15 defective

phone.

16 74. Plaintiff also

complied

with _any

warranty

preconditions

under

17 California law. California Civil Code 1793.3 states if "the manufacturer of

18 consumer

goods

sold in this state for which the manufacturer has made an _express

19

warranty

does not

provide

service and

repair

facilities within this state" the

buyer

20 _may return the

nonconforming goods

to either:

(1)

the retail seller of the

21

nonconforming goods;

or

(2)

to _any retail seller of like

goods

of the same

22 manufacturer within this state.

According

to

Samsung,

its

only

authorized

phone

23 service center is in Texas. Plaintifftook her defective

phone

to a California location

24 of retail sellers of such

products.

Plaintiff's

phone

carrier is the authorized

agent

and

25 reseller of like

goods

of defendant

Samsung

and

therefore,

by

statute, is an 26 authorized service

facility

_{for the express}

warranty.

Plaintiff

complied

with all 27

preconditions

to

asserting

an _express

warranty

claim

by returning

her defective

28 CLASSACTION COMPLAINT Page I 17 FINKELSTEIN & KRINSKLLP

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1

Samsung

phones during

the

warranty

period

to "an authorized

phone

service

facility"

2 or a "retail seller" of such

phones

as set forth in the express

warranty

and as

3

permitted

under Cal. Civ. Code 1793.3.

By

sending

her

phone

to her

phone

carrier

4 for service or

repair

of the

defect,

Plaintiff

complied

with _any

warranty's

5

preconditions

based on how the term "authorized

phone

service

facility"

has been

6

applied by

Samsung.

7 75. In conformance with her

warranty,

Plaintiff contacted and afforded

8 defendant

Samsung

or its

agents

and authorized

phone

service facilities reasonable

9

opportunities

to

repair

and/or

replace

the defective

phone during

the

warranty

period

10 with a

phone

that didnot_{possess the} defect.

11 76.

Samsung

was on notice of the defect in the

Galaxy

S

phones

from 12

complaints

and service

requests

it

admittedly

received from Plaintiff and Class 13

members,

from

repairs

and

replacements

of the

Samsung

Galaxy

S

phones

at

issue,

14 and

through

its own internal

investigation.

15 77. Plaintiff also

repeatedly

tried to return her defective

Samsung

Galaxy

S

16

phone

to

Samsung's

authorized

agents

and resellers

during

the

warranty

period, only

17 to have the defect

persist.

Samsung's

only

_response to the defect has

perpetuated

an

18 endless

cycle

of

futility

for Plaintiff and Class

members,

leaving

them with norelief.

19 78. Defendant

Samsung

breached _{its express} warranties

by failing

to

repair

20 the

phones, failing

to

replace

the defective

Galaxy

S

phones

with non-defective 21

phones

and refund Plaintiffs and Class members' monies.

22 79. Defendant

Samsung's

_{breach of its express}

warranty

caused Plaintiffto

23 suffer

injuries, including

the

inability

to use her

phone, paying

for defective

24

products,

and

entering

into transactions she would not have entered into but for 25

Samsung's

acts.

proximate

result of

Samsung's

breach of its express

27

warranties,

Plaintiff and Class members have suffered

damages

and continue to

(20)

CaseIp:13-cv-01028-JVS-RNB

Page

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Page

ID #:20

1 suffer

damages, including

economic

damages

at the

point

of sale for the difference

2 between the value of the

phones

as

promised

and the value of the

phones

delivered

3

(essentially

worthless).

Plaintiff and Class members either have or will incur

4 economic

damages

at the

point

of

repair

in the cost of

repair

or

replacement

and

5 costs of

complying

with continual contractual

obligations

and the cost of

buying

an 6 additional

phone they

would not have

purchased

had the

phones

in

question

not

7 contained the

non-repairable

defect.

legal

and

equitable

relief

9

against

Samsung,

including damages,

specific

performance,

10

fees,

costs of

suit,

and otherrelief.

11 COUNT III

12 Breach of

Implied Warranty

13 82. Plaintiff

incorporates

the above

allegations by

reference as if

fully

set

14 forth below.

individually

andfor the

proposed

Class.

16 84. Defendant

Samsung

and its authorized

agents

and resellers sold

Galaxy

17 S Phones to Plaintiff and Class members in the

regular

course of business.

18 85. Defendant

Samsung

impliedly

warranted to Plaintiff and Class

19

members,

these

phones

were of merchantable

quality

(i.e.

a

product

ofa

high enough

20

quality

to make it fit for

sale,

_{usable for the purpose it} was

made,

of average worth in

21 the

marketplace,

or not

broken,

unworkable, damaged,

contaminated or

flawed),

22 _{would pass without}

objection

in the trade or

business,

and were free from material

23 defects and

reasonably

fit for the use for which

they

were intended.

Samsung

either

24 knew or should have known of the purposes for which such

phones

are used

(i.e.

the

25

ability

to send and receive

contemporaneous

communications),

and

Samsung

should

26 have been aware Plaintiff and the Class members were

relying

on defendant

27

Samsung's

skill and

judgment

to furnish suitable

goods

_{for such purpose.} 28 CLASS ACTION COMPLAINT _PageI 19 FINKELSTEIN & KRINSK LLP

501 West_Broadway,Suite 1250

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1 86. Under

agreements

between

Samsung

and its authorized

agents

and

2

resellers,

the stores from which Plaintiff and Class members

purchased

their 3 defective

Galaxy

S

phones

were authorized

Samsung

retailers and authorized

phone

4 service facilities. Plaintiff and Class members are

third-party

beneficiaries

of,

and

5

substantially

benefited

from,

such contracts.

6 87. Defendant

Samsung

breached its

implied

warranties

by selling

Plaintiff

7 and Class members defective

Samsung Galaxy

S mobile

phones

that failed

during

all

8

warranty

periods.

The defect renders the

Galaxy

S

phones

unfit for their

ordinary

use

9 _{and purpose.} Defendant

Samsung

has refused to

recall,

repair

or

replace,

without

10

charge,

all

Samsung

Galaxy

S mobile

phones

or their defective

component parts

or

11 refund the

prices paid

for defective

phones.

12 88. Defendant

Samsung

was on notice of the defect from

complaints

and

13 service

requests

Samsung

admittedly

received from Plaintiff and Class

members,

14 from

repairs

and

replacements

of the

Samsung

phones

at

issue,

and

through

15

Samsung's

own internal

testing

and

investigations.

16 89. Plaintiff afforded

Samsung

and its authorized

phone

service facilities 17

repeated opportunities

to

repair

or

replace

the defective

phones,

which defendant

18

rejected.

19 90. The defect in the

Galaxy

S

phones

existed when the

phones

left

20

Samsung's

and

Samsung's

authorized

agents'

and resellers'

possession

and renders 21 the

phones

unfit for theirintended use and purpose.

proximate

result of

Samsung's

breach of its

implied

23

warranties,

Plaintiff and Class members have suffered

damages

and continue to

24 suffer

damages, including

economic

damages

at the

point

of sale for the difference

25 between the value of the

phones

as warranted and the value of the

phones

as

26 delivered. Plaintiffand Class members either have orwill incur

economic,

incidental

27 and

consequential damages

in the cost of

repair

or

replacement

and costs of

(22)

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1

complying

with continued contractual

obligations

and the cost of

buying

an

2 additional

phone they

would not have

purchased

had the

phones

in

question

not

3 contained the

non-repairable

defect.

legal

and

equitable

relief

5

against

Samsung,

including damages, specific performance,

6

fees,

costs of

suit,

and other relief.

7 COUNT IV

8

Song-Beverly Warranty

Act,

California Civil Code 1792 et _seq.

9 93. Plaintiff

incorporates

the above

allegations

by

reference as if

fully

set

10 forth below.

11 94. Plaintiffassertsthis claim

individually

and for all Class members.

12 95. Under the

Song-Beverly

Consumer

Warranty

Act,

CaliforniaCivil Code

13 1792 et_{seq., every sale of}consumer

goods

in California is

accompanied by

both a

14 manufacturer's and retail seller's

implied

warranty

that the

goods

are

merchantable,

15 and

accompanied by

an

implied

warranty

of fitness.

16 96. Plaintiff and Class members each

purchased

one or more

Samsung

17

Galaxy

S

phones

at retail stores in

California,

which are "consumer

goods"

within

18 the

meaning

of California Civil Code

1791(a).

19 97. Defendant

Samsung

manufactures and sells

Samsung

Galaxy

S mobile

20

phones

to retail

buyers,

and therefore

Samsung

is a "manufacturer" and "seller"

21 within the

meaning

ofCalifornia Civil Code 1791.

22 98. Defendant

Samsung

provided

_express warranties and

Samsung

23

impliedly

warranted to Plaintiffand Class members the

Samsung

Galaxy

S

phones

24 were ofmerchantable

quality,

would pass without

objection

in the trade or

industry,

25 andwere fit for the

ordinary

_{purposes for which the}

phones

are used.

26 99. Defendant

Samsung

_{has breached both express and}

implied

warranties

27 because the

Samsung

Galaxy

S mobile

phones

sold to Plaintiff and Class members

28 CLASS ACTIONCOMPLAINT _Page₁₂₁ FINKELSTEIN & KRINSK LLP

501 West_Broadway,Suite 1250

(23)

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1 were not of the same

quality

as those

acceptable

in the trade and were not fit for the

2

ordinary

_{purposes for} which such

goods

are

used,

in that the

phones

freeze,

shut 3

down,

and

power-off randomly

while in

standby

mode,

causing

Plaintiffand Class

4 members to miss

calls,

lose

time,

data and work

product, impairing

the

usability

of

5 the

phones.

6 100. Plaintiff

complied

with all

provisions

of the

Song-Beverly

Act

by

7

attempting

to have her

phone repaired.

In

compliance

with California Civil Code 8

1793.3,

if "the manufacturer of consumer

goods

sold in this state for which the

9 manufacturer has made an _express

warranty

does not

provide

service and

repair

10 facilities within this state" the

buyer

_may return the

nonconforming goods

to either:

11

(1)

the retail seller of the

nonconforming goods;

or

(2)

to _{any retail seller of like}

12

goods

of the same manufacturer within this state.

According

to

Samsung,

its

only

13 authorized

phone

service center is in Texas. Plaintiff either took her defective

14

telephone

to the California location of a retail seller of such

products,

as Plaintiffs' 15

phone

carrier is a

Samsung

authorized retail selleroflike

goods.

16 101. As

Samsung

or its

representatives

and retail sellers cannot

repair

these 17

phones

to conform to the warranties after a reasonable number of

attempts,

Samsung

18 must

replace

the defective

phones

with non-defective

phones

orreimburse the

buyers

19 for the

purchase price

of such

phones.

Defendant

Samsung

has failedto do so. Such

20 failureto

comply

with these

statutory

warranty

obligations

was willful.

proximate

cause of

Samsung's

breach of the

Song-22

Beverly

Act,

Plaintiffand Class members sustained

damages

and other losses in an 23 amount to be determined

entitling

them to

compensatory

damages,

consequential

24

damages,

statutory

damages

and civil

penalties,

diminution in

value,

_costs,

attorneys'

25 fees and interest.

26 27

(24)

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1 COUNT V

2

Magnuson-Moss Warranty

Act,

15 U.S.C. 2301 et_seq.

3 103. Plaintiff

incorporates

the above

allegations by

reference as if

fully

set

4 forth below.

individually

and for the

proposed

Class.

6 105. The

Samsung

Galaxy

S mobile

phones

at issue are "consumer

products"

7 within the

meaning

of the

Magnuson-Moss

Act,

15 U.S.C.

2301(1).

8 106. Plaintiff and Class members are "consumers" within the

meaning

ofthe

9

Magnuson-Moss

Act,

15 U.S.C.

2301(3).

10 107. Defendant is a

"supplier"

and "warrantor" within the

meaning

of the

11

Magnuson-Moss

Act,

15 U.S.C.

2301(4)-(5).

12 108. Defendant issued Plaintiff and Class members a "written

warranty"

13 within the

meaning

of the

Magnuson-Moss

Act,

15 U.S.C.

2301(6).

14 109. Defendant

Samsung

warranted to Plaintiff and to Class members the

15

Samsung

Galaxy

S mobile

phones

were free from

defect,

were of merchantable

16

quality,

and fit forthe

ordinary

and

specific

_{purposes for}which the

phones

are used.

17 110. Defendant

Samsung

has breached and refused to honor its warranties as

18 the

Samsung Galaxy

S mobile

phones

are defective and were not as

expressly

and 19

impliedly

warranted andfailed to

perform

as

reasonably

expected.

20 111. Plaintiff has asserted a valid breach of express and

implied

warranty

21 claim as set out in Counts I and II above. Plaintiff

complied

with all

warranty

22

preconditions by taking

her defective

phone

to an authorized

phone

service

facility

23 for

repair

or

replacement.

Plaintiff made these

attempts

during

the express

warranty

24

period.

Plaintiff afforded

Samsung

and its authorized

phone

service

facility

the 25

opportunity

to cure the defect

by

repairing

or

replacing

the

phone prior

to the

26 initiation of this

action,

without success.

27

28 _{CLASS ACTION COMPLAINT} _Page₁₂₃ FINKELSTEIN & KRINSK LLP 501 West_Broadway,Suite1250 San_Diego,California 92101

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Case16:13-cv-01028-JVS-RNB

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1 112. Defendant

Samsung

has breached and refused to honor its warranties. 2 Due to the

defect,

the

Samsung

Galaxy

S

phones

werenot as

expressly

and

impliedly

3

warranted,

and failedto

perform

as

reasonably expected.

4 113. The amount in

controversy

ofPlaintiffs' and Class members' individual

5 claims meets or exceeds the sum or value of

$25.

The amount in

controversy

meets

6 orexceeds the sum or value of

$50,

000

(exclusive

of interest and

costs)

computed

on

7 the basis ofall claims to be determined.

Samsung

maintains no alternative

dispute

8 _{resolution program}that

complies

with the

requirements

of 16 C.F.R. 703 et_seq.

9 114. Defendant has been afforded a reasonable

opportunity

to cure its breach 10 of

warranty.

Defendant has been

provided ample

notice ofthe defect

experienced

by

11 both Plaintiffand Class

members,

but has failedto

remedy

the situation.

12 115. As adirect and

proximate

resultofdefendant's

conduct,

Plaintiff and the

13 Class have suffered

injury

and

damages

in an amount to be determined. Plaintiff and

14 the Class are entitled to recover

damages, consequential damages, specific

15

performance,

diminution in

value, rescission, attorneys'

fees and costs, and other 16 reliefas authorized

by

law.

17 COUNT VI

18 Violation of the California Unfair

Competition

Law

19 116. Plaintiff

incorporates

the above

allegations by

reference as if

fully

set

20 forth below.

21 117. Plaintiffasserts this claim

individually

and for all Class members.

22 118. Defendant

Samsung's

business acts and

practices complained

ofwere

23 centered

in,

carried out, effectuated and

perfected

within or had their effect in 24

California,

and

injured

Plaintiffand all Class members.

25 119. Defendant

Samsung

has committed acts of unfair

competition,

as

26 defined

by

California Business and Professions Code 17200 et_seq.,

by engaging

27 in the acts and

practices

alleged

above.

(26)

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1 120. This claim is

brought

under California Business and Professions Code

2 17203 and

17204,

to obtain

equitable

monetary

and

injunctive

relief from

3

Samsung

for acts and

practices,

as

alleged,

that violated California Business and 4 Professions Code

17200,

commonly

known asthe Unfair

Competition

Law.

5 121. Defendant

Samsung's

conduct as

alleged

violated Section 17200. The

6 acts,

omissions,

practices

and non-disclosures of defendant constituted a _common,

7 continuous conduct ofunfair

competition by

the commission of unfair and unlawful

8 business acts or

practices

within the

meaning

ofCalifornia Business and Professions

9 Code 17200 et_seq.

10 122. Defendant

Samsung

engaged

in "unlawful" business acts and

practices

11

by:

12

a)

violating

the

Magnuson-Moss Warranty

Act,

15 U.S.C. 2301 et_seq.;

13

b) violating

the

Song-Beverly

Consumer

Warranty

Act,

California Civil

14 Code 1792 et_seq.;

15

c)

breaching implied

_{and express}

warranties;

and

16 123. Defendant

Samsung

engaged

in "unfair" business acts and

practices by:

17

a)

engaging

in conduct where the

utility

of such conduct is

outweighed by

18 the

gravity

_{of the consequences} to Plaintiff and to the Class

considering

19 the

reasonably

available

alternatives,

based on

legislatively

declared

20

policies

not to sell defective

products

in the

market;

21

b)

engaging

in conduct that is

immoral,

unethical,

oppressive,

22

unscrupulous,

or

substantially injurious

toPlaintiff andthe

Class;

and

23

c)

engaging

in unfairbusiness

practices by refusing

to

adequately repair

or

24 recall the defective

Samsung

Galaxy

S

phones

or

providing

25

compensation

therefor.

26 124. Defendant

Samsung

engaged

in "unfair" business acts and

practices

by

27

selling

the

Samsung

Galaxy

S

phones

knowing

or

being

aware the

phones

contained 28 CLASSACTIONCOMPLAINT _Page₁₂₅ FINKELSTEIN & KRINSK LLP

501 West_Broadway,Suite 1250 California92101

(27)

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1 the defect that causes these

phones

to

freeze,

shut

down,

and

power-off randomly

2 while in

standby

mode,

then

only offering

to

replace

them with

similarly

defective 3

phones.

Defendant

Samsung

also

engaged

in unfair business acts and

practices by

4

making

_{express and}

implied

warranties,

which

Samsung

refuses to honor.

5 125. As such conduct is or_{may well be}

continuing

and

ongoing,

Plaintiff and

6 Class members are entitled to

injunctive

relief to

prohibit

or correct such

ongoing

7 acts of unfair

competition,

in additionto

obtaining equitable

monetary

relief.

8 126. Plaintiff and Class members used

Samsung's products

and had business

9

dealings

with

Samsung

either

directly

or

indirectly

as described above. Defendant 10

Samsung's

acts and

practices

have caused Plaintiffand Class members to _{lose money}

11 and

property

by being overcharged

for and

paying

for the defective

phones

at

issue,

12 or

being required

to

purchase

an additional

working phone.

Such loss resulted from

13 the above acts ofunfair

competition

and

Samsung's

misconduct in violation of the

14 state and federal laws set forth above. Plaintiff is therefore entitled to _{seek recovery}

15 of such amounts. Such

injury

occurred when such monies were

paid.

Plaintiffhas

16 suffered

injury

_{and lost money} or

property

because ofsuch acts and

practices.

17 127. Defendant

Samsung

has

unjustly

benefited from its

wrongful

conduct

18 and its acts of unfair

competition.

Plaintiff and Class members are

accordingly

19 entitled to

equitable

relief

including

restitution and

disgorgement

of all revenues,

20

earnings, profits, compensation,

_{and benefits that may have been obtained}

by

21

Samsung

from such business acts and

practices,

under California Business and

22 Professions Code 17203 and

17204,

and

attorneys'

fees and costs under California

23 Code of Civil Procedure 1021.5.

24 PRAYER FORRELIEF

25

WHEREFORE,

Plaintiff _{and all Class members pray for}

judgment against

26 defendant

Samsung:

27

(28)

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1

1 A.

Declaring

this action to bea _proper Class actionunder Rule 23 of

the'

2 Federal Rules ofCivil

Procedure;

3 B.

Awarding

Plaintiff and Class members _{all proper} measures

of

4

equitable

monetary

relief and

damages, plus

interest to which

they

5 are

entitled;

6 C.

Awarding equitable, injunctive,

and

declaratory

relief as