Guitar Hero III

Alan Himmelfarb LLC 2 KamberEdelson, 2757LeonisBlvd. 3 Vernon,California9005 8-23 04 : 4 TelephoneQ23) 585-8696 ahimmelfarb@lcamberedelson. com { 6 7 8 9 I t0 1l 12 t3 l4 l5 t6 ScottA. Kamber KamberEdelson, LLC I I Broadway, Z2ndFloor. New York, NY. 10004 Telephone(2 12) 920 072 : -3 Fax: (212) 202-6364 skamber@kamberedelson. com Attorneys Ptaintif Samue Livingston I for IN TIIE ITNITEDSTATESDISTRICT COURT FOR TIIE CENTRAL DISTRICT OF'CALIF'ORNIA SAMUEL LIVINGSTON. an individual.on behalfof hiinselfandall 1 7 otherssimilarly situated, l8 l9 CA S E!trcvDT-0805 No. COMPLAINT JURY DEN4AND Plaintiff, v. corporation, DOES l-:t3 t o and Defendants. 20 ACTIVISION.INC.. a Delaware 2r 22 23 24 tls; 25 I 2 3 4 5 6 7 I 9 l0 ll t2 t3 t4 l5 t6 t7 l8 l9 20 2l CLASSACTION COMPLAINT Plaintiff SAMUEL LIVINGSTON ("Plaintiff ), by his anomeys,states this complaintagainstDefendant ACTIVISION, INC. ("Activision"). Plaintiffs allegations based informationand belief, exceptto his own actions,which are on arebased knowledge. Plaintiffs allegations informationand belief arebased on on on the investigation his counsel,and factsthat are a matterof public record. of NATURE OF THE CLAIM the This is a classactionconcerning Guitar Hero III: Legendsof Rock by musicvideo game("Guitar Hero III") published Activision, The gameis on advertised sold as fully supported the NintendoWii video gameconsole, and includingDolby Pro Logic II surroundsound. However,in truth and in fact,the GuitarHero III gamedoesnot supportDolby Pro Logic II surroundsoundfor the Wii, nor doesit evenproducesimplestereosoundfor that gameconsole. Though of entirelyuponthe production the GuitarHero III musicvideogameis based gamersareonly providedwith mono soundfor nearly 22 music,on the Wii system, 23 24 25 late October2007,as of the dateof this filing, Activision hasyet to: publicly take 2 6 responsibility its advertisingand specificationmisstatements; providea fix or for 27 28 of all aspects gameplay. AlthoughActivisionhasbeenawareof this issuesince Dolby Pro Logic II to compensation Wii gamersfor the lack of the advertised I 2 J suround sound;and conect its advertising currentand futurepurchasers, for who, asthe holiday season approaches, evennow arepurchasing are Guitar Hero III musicvideo gamesthat arenot what they saythey are. INTRODUCTORY ALLEGATIONS l. This consumer classactionarises from defendant ActivisionInc.'s 4 5 6 7 8 9 l0 ll l2 l3 ("Activision") engaging deceptive unlawful conductin designing, in and manufacturing, marketing,distributing,and sellinga defectivelydesigned music video gamefor the NintendoWii gameconsole. 2. Activision,Inc. (NASDAQ:ATVI) is an Americanvideogame r4 l5 l6 l7 l8 l9 20 21 22 23 24 developer publisher.It wasthe first independent and developer and distributorof founded Octoberl,1979. Its first products videogames gamingconsoles, for on werecartridges the Atari 2600video consolesystem,and it is now one of the for in largestthird party video gamepublishers the world, and is presentlythe top 2,2007 it was announced publisherof gamesin the U.S. On December that Activision would mergewith Vivendi Games. of Guitar Hero III: Legends Rock Video Game 3. GuitarHero III: Legends Rockis a musicvideo gameandthe third of (the fourth title overall).The gameis 25 fulI installmentin the Guitar Hero series 26 published Activision andRedOctane (acquired Activision in 2006),with by by 27 28 2, Nevenoft (acquiredby Activision in 1999)asthe developerfor the PlayStation I ) PlayStation Xbox 360,andWii consoles. 3, 4. In the Guitar Hero III game,a playerusesa guitar-shaped controller 3 4 5 6 7 8 9 l0 11 l2 t3 l4 l5 16 l7 l8 l9 2A 2l simulatethe playing of varying gemesof musicby playing notesasthey scroll intime with the music.The gamefeatures playablesongs. To play the game,the 7I playermust hit notesasthey scroll towardsthe bottomof the screenin time with music in orderto maintaintheir performance to scorepoints. and NintendoWii 5. The Nintendo Wii (pronounced the Englishpronounwe), is the as The console the direct released Nintendo. by is fifth homevideogameconsole successor the Nintendo GameCube.A distinguishing to featureof the consoleis pointing its wirelessconfroller,the Wii Remote,which can be usedas a handheld in deviceand can detectacceleration threedimensions. 6. The Wii versionof the GuitarHeroIII: Legends Rockvideogame of hasseveralexclusivefeatures, sincea Wii Remotemustbe insertedinto the guitar wireless contoller. The gameutilizesthe Wii Remote's capabilities and 22 accelerometer, well as making useof a rumblefeatureand an internalspeaker. as 23 24 25 Dolby Pro Logic II 7. technologydesigned Dolby Pro Logic is a surroundsoundprocessing 26 to decode with Dolby Surround.Dolby SurroundStereowas encoded soundtracks 27 28 in originally developed Dolby Laboratories t976 for analogcinemasound by I z J systems'The formatwasadapted forhome usein was thenreplacedby the newerand irnprovedpro 8. lgg6 asDolby surroundwhich Logic system. [, '' improved 4 5 6 7 I 9 l0 ll l2 13 l4 In 2000,Dolby introduced Dolby pro Logic implementation Dolby pro Logic. Dolby pro of Logic II processes high any qualitystereo signalsource into "5.1r'-five separate frequency full channels (Ieft, center,right, left surroundandright surround) plus one low-frequency-effects (deepbass) channel.Dolby Pro Logic II alsodecodes channels 5.1 from stereo signals encoded traditionalfour-channel in Dolby Surround.Dolby pro Logic II offersan exceptionally stablesoundfield that simulates channel 5.1 surround soundto a muchmore accurate degree thanthe original pro Logic. The pro Logic 1 5 II system also features modedesigned a specificallyfor l6 t7 l8 l9 video gaming,and it is frequentlyusedin gametitles for sony'sPlaystation2, Nintendo,s Gamecubeand the Wii. Activision's Ad_vertising Representations and Regarding 9' l0' the Guitar 20 Hero III Game for Wii 2l 22 23 24 25 26 27 28 A centralfeatureof the GuitarHero III gameis the sound(music). Prominentlyfeaturedon the box that the Guitar Hero III video game Dolby pro Logic 2 sold in are statements the gamesupports that both stereoand soundoptions. I 1' The specifications Activision'sadvertising the Guitar in of Hero III I 2 J video gameprominentlystatethat the gamefeatures Dolby Pro Logic II sound. 12. The Activision Instructionbookletfor the Guitar Hero III video game for the Wii states: Manufactured underlicensefrom Dolby Laboratories. Dolby, Pro Logic, andthe double-Dsymbolaretrademarks Dolby of Laboratories. This gameis presented Dolby Pro Logic II. To play games in that carry the Dolby Pro Logic II logo in surroundsound,you will needa Dolby Pro Logic II, Dolby Pro Logic or Dolby pro Logic IIx receiver. 13. The Activision Instructionbookletfor the Guitar Hero III video game forthe Wii alsostates: You can alsoturn StereoSoundon and off. 14. Contraryto the representations advertisements Activision, the and of Wii versionof Guitar Hero III doesnot featureDolby Pro Logic II sound,nor does 4 ) 6 7 8 9 l0 ll t2 l3 t4 t5 l6 t7 l8 l9 20 21 22 it evenpermit stereosound. The Wii versionof Guitar Hero III actuallyonly 23 24 25 permitsmonosound. 15. Activision hasnot corrected soundissuefor any purchaser the the of 26 Guitar Hero III game. Nor hasActivision undertaken any actionsto notiff Wii 27 28 gameconsoleuriers who are pastor futurepurchasers the Guitar Hero III game of I 2 { of the defectsinherentin the game. 16. Guitar Hero III for Wii is still availableas a retail producton many retailers'shelves going into the holidaypurchasing season.The only limitations on purchasers who would otherwisebe purchasing deceptivelyadvertised a and defectivelyoperatinggarneis the currentpopularityof the g€rme, which has rendered diffrcult to acquiredueto the demand it outstrippingsupply. 17, No notification of the GuitarHero III video game'sinadequacies have beenprovidedto the plaintiff or the plaintiff class. No refundshavebeensentto the plaintiff or the plaintiff class. classof actionon behalfof a nationwide 18, Plaintiffbringsthis class Activision's GuitarHero III for Wii which was consumers who purchased misrepresented supportingboth stereoandDolby Pro Logic 2 soundoptions. as Plaintiffand the proposed classmembers the would not havepurchased Guitar Hero III video gameand/orpaid as muchfor it hadthey known the truth aboutthe product. 19. Plaintiffseeks relief, actualdamages, individualrestitution, equitable fees,andall of civil penalties, costsandexpenses litigation,includingattorneys' 4 5 6 7 8 9 l0 ll t2 l3 r4 l5 l6 t7 t8 l9 20 2r 22 23 24 25 furtherrelief available. 26 27 28 VENUE AND JURISDICTION to 20. This Court has subjectmatterjurisdiction over this actionpursuant I 2 3 4 5 6 7 I 9 l0 ll t2 13 28 U.S.C'$ 1332. The aggregate claimsof plaintiff andtheproposed class members exceed sumor valueof $5,000,000.00. the 2lThis Courtalsohaspersonal jurisdictionoverdefendant because a (a) substantial portion of the wrongdoingallegedin this complainttook placein this (b) state, defendant Activision's principleplaceof business locatedin this state, is and(c) defendant authorized do business is to here,has sufficientminimum contacts with this state,and/orotherwiseintentionallyavaileditself of the markets in this statethroughthe promotion,marketingand saleof its productin this state, to renderthe exercise ofjurisdiction by this Courtpermissible undertraditional justice. r4 notionsof fair play and substantial l5 l6 22. venue is properin this Districtunder28 u.s.c. g l39l(b) and(c). A substantial portion of the eventsandconductgiving rise to the violationsof law r7 of in ActivisionInc.'s princi l8 complained hereinoccurred this District,defendant t9 executiveofficesand headquarters locatedin this are District at 3100 OceanPark 20 Blvd., Santa Monica,CA 90405-3067, defendant and conducts business with 2r 23 24 22 consumers this District. in 23. All allegations this complaint based informationandbelief in are on opportunityfor 25 and/orarelikely to haveevidentiarysupportafter a reasonable 26 furtherinvestigation discovery. or 27 28 I 2 J PARTIES 24. PlaintiffsamuelLivingstonis an individualresidingin SanDiego, California. Mr. Livingston purchased copy of the Guitar Hero III video gamefor a the Wii. The Guitar Hero III video garnewas advertised marketedas and supporting both stereoand Dolby Pro Logic 2 soundoptions. Mr. Livingston would not havepurchased videogameand/orpaid as much for the video game the had he known the truth aboutthe product. Mr. Livingston bringsthis actionon behalfof himself andall otherssimilarly situated. 25. Defendant Activisionhasbeenandstill is engaged the business in of designing, creating,marketing,distributing,and/orselling video gzrmes gaming for 4 5 6 7 I 9 l0 lt 12 l3 14 1 5 consoles.Defendant Activision is a DelawareCorporation with its principal l6 l7 officesat 3100Ocean ParkBlvd., Santa Monica,CA 90405 -3067.Activision tradeon the NASDAQ (ATVI). 18 commonshares l9 20 2l 26. Plaintiff is currentlyignorant ofthe true names andcapacities, whetherindividual, cotporate, associate, otherwise, the defendants or of sued lo 22 hereinunderthe fictitious names Does I through75, inclusive,and therefore, sues 23 24 suchdefendants suchfictitious names.Plaintiffwill seekleaveto amendthis by and capacities said fictitiously named of 25 complaintto allegethe true nrlmes 26 defendants when their true namesandcapacities havebeenascertained. Plaintiffis 27 28 informedand believesand based thereonallegethat eachof the fictitiously named I 2 3 4 s 6 7 Doe defendants legalryresponsibre somemanner the is in for events and occurrences allegedherein,and for the damages sufferedby plaintiff. 27' Plaintiff is informedand believes and based thereonallegethat all defendants, includingthe fictitious Doe defendants, were at all relevanttimes actingasactualagents, conspirators, ostensible agents, partnersand/orjoint allegedherein E venturers and employees all otherdefendants, that all acts of and 9 l0 ll t2 l3 T4 l5 16 t7 IE l9 20 21 22 23 24 25 26 27 28 occurredwithin the courseand scopeof saidagency,employment, partnership, joint venture,conspiracy enterprise, with the express or and and/orimplied permission, knowledge, consent, authorization ratification of their coand defendants; however,eachof theseallegations deemed are "alternative',theories whenever doing so would resultin a contraction not with the other allegations. CLASS ALLEGATIONS 28. Plaintiff bringsthis actionpursuant Rule 23(b)(Z)and(b[3) of the to Federal Rulesof Civil Procedure, behalfof himselfanda classdefinedas on follows: All persons entitiesresidingin the united stateswho purchased or a Guitar Hero III video gamefor the wii which was advertised, labeled or marketedas supportingstereoand/orDolby pro Logic 2 sound options. Excludedfrom the classis defendant, entity in which defendant any I 2 3 4 5 hasa controlling interestor which hasa controlling interestin defendant, defendant's md legalrepresentatives, predecessors, successors, assigns, employees. and Also excluded from the classare thejudge andstaffto whomthis case assigned, any member is and of thejudge's immediate family. 29. Plaintiffreserves right to revisethis definitionof the classbased the on factshe learnsduring discovery. 30. Plaintiff is a memberof the classthathe seeks represent. to Members of the classcanbe identifiedusingdefendant's records retail sales of andother informationthat is kept by defendant the usualcourseof business in and/orin the 6 7 I 9 10 n I2 13 l4 15 controlof defendant. Classmembers alsobe notifiedof the classaction can l6 r7 l9 20 2l publication directmailingsto address maintained the usual through and lists in ofbusiness defendant. bv 1 8 course 31. Numerosi5z:Classmembers so numerous their individual that are joinder is impracticable. is estimated the Classconsists tensof thousands It that of 22 of members. The precise numberof class members unknownto plaintiff,but it is 23 24 25 is clearthat the numbergreaflyexceeds numberto makejoinder impossible. the 32. Existence predominance commonquestions:Common and of 2 6 questions law and fact predominate of over the questions affectingonly individual 27 28 classmembers.Someof the commonlegalandfactualquestions include: I a. whether the Guitar Hero III video gamefor the wii fails to 2 J conformto Activision'sadvertised productspecifications; b. whether the GuitarHero III video gamefor the wii actually 4 5 6 7 I 9 10 ll t2 13 14 15 t6 t7 18 l9 20 2l 22 23 24 25 26 27 28 supports complieswith the Dolby Pro Logic 2 specifications or and canproperly output audiocontentto a Dolby Pro Logic 2 capable receiver; c. Whetherdefendant knew or shouldhaveknown that the Guitar Hero III video gamefor the Wii doesnot actuallysupportor comply with Dolby Pro Logic 2 specifications; d. madefalseand/ormisleadingstatements Whetherdefendant of fact to the classandthe public conceming capabilitiesof Guitar the Hero III video game; e. Whetherdefendant's falseand/or misleadingstatements fact of to the classandthe public aboutthe capabilitiesof the GuitarHero III video gamefor the Wii, andthe concealment materialfacts,were of likely to deceive public; the f. Whetherdefendant knowingly concealed defectivedesign the of the Guitar Hero III video gamefor the Wii with respect Dolby to Pro Logic 2 or stereocapabilities; g. refusedto recallthe defectivelydesigned Whetherdefendant I 2 3 4 5 6 7 8 9 l0 ll 12 l3 L4 l5 16 t7 18 t9 20 2l 22 23 24 25 26 27 28 Guitar Hero III video gamefor the wii in order to increase salesof new video game; h. whether defendant misrepresented capabilitiesof the Gui the Hero III videogamefor the Wii; i. whether defendant maderepresentations the Guitar Hero that III video gamefor the wii was of a particularstandard quality, or which it did not have; j. whether defendant maderepresentations the Guitar Hero that III videogamefor the wii hadcharacteristics, benefits, uses, or qualities which it did not have; k. whether, by its conduct,defendant engaged unfair or has in unlawfulbusiness practices with respect the advertising, to marketing, andsaleof the GuitarHero III videogamefor the Wii; l. Whether,by its conduct,defendant engaged unfair, has in deceptive, untrue,or misleading advertisingof the Guitar Hero III videogamefor the Wii; m. Whether defendant violated consumer protection statutes falseadvertisingstafutes and/orstatedeceptive practices business statutes; and n. The nature and extent of damagesand other remedies to which I the conductof defendant entitlesthe classmembers. 33. Defendantengaged a commoncourseof conductgiving rise to the in legalrights soughtto be enforcedby the classmembers.Similar or identical defective designs, statutory commonlaw violations, and deceptive business practices, defectiveproductsareinvolved. Individual questions, any,pale and if by comparison the numerous to commonquestions predominate. that 34. The injuriessustained the classmembers by flow, in eachinstance, from a commonnucleusof operativefacts. In eachcase,defendant designed, created, supplied,distributed,marketed, and/orsold the defectiveGuitar Hero III video gamefor the Wii. 35. The classmembers havebeendamaged defendant's by misconduct. the The classmembers havepurchased defectiveGuitar Hero III video games. classmembers would not havepurchased GuitarHero III video gamefor the the Wii and/orpaid as much hadthey known the truth aboutthe products. 36. Tylic_elitr: Plaintiff s claimsaretlpical of the claimsof the other 2 J 4 5 6 7 I 9 10 ll t2 13 l4 l5 t6 17 l8 l9 20 2t 22 proposed a classmembers.Plaintiffpurchased GuitarHero III videogamefor the 23 24 and marketedor labeled Wii designed createdby defendant falselyadvertised, and capabilities similarlymisrepresented, Dolby Pro Logic 2 or stereo or 25 as supporting 26 but which was,in fact, not compliantwith suchspecifications capabilities. or 27 37. Adpgu.acy: Plaintiffwill fairly and adequatelyprotect the interestso 28 I ) 3 4 5 6 7 8 9 l0 ll the class' Plaintiff is familiar with the basicfacts that form the bases the of proposed classmembers'claims. Plaintiffs interests not do conflict with the interests the otherclassmembers of that he seeks represent.plaintiff has to retainedcounselcompetent experienced class and in action litigation who will prosecute actionvigorously. Plaintiffs counsel this havesuccessfully prosecuted complexactions includingconsumer protection classactions.plaintiffand plaintiffs counselwill fairly and adequately protectthe interests the class of members. 38. Superiorit-y:The classactiondeviceis superior otheravailable to means the fair andefficientadjudication the claimsof plaintiff for of andthe memberof the classis t2 r3 t4 1 5 proposed classmembers.The relief sought individual per l6 l7 smallgiven the burdenand expense individualprosecution the potentially of of litigationnecessitated the conduct defendant. by 18 extensive of Furthermore, it 1 9 would be virtually impossiblefor the classmembers seekredress an to on 20 2l individual basis. Even if the classmembers themselves could afford such 22 individual litigation, the court systemcould not. 23 24 39. Individuallitigationof the legalandfactualissues raisedby the would increase 25 conductof defendant delayandexpense all partiesandto the to 26 court system. The classactiondevicepresents fewer management far difficulties 27 28 andprovides benefits a single,uniformadjudication, the of economies scaleand of I comprehensive supervision a singlecourt. by 40' Giventhe similarnafureof the class members' claimsandthe absence upon which the class 2 J 4 ) of materialdifferences the statestatutes commonlaws in and 6 7 8 9 l0 ll l2 l3 t4 l5 l6 17 l8 l9 20 2l 22 23 24 25 26 27 28 members' claimsarebased, nationwide a class will be easilymanaged the by andthe parties. 41. The courtmay be requested alsoincorporate to subclasses of plaintiffs, defendants, both, in the interestofjustice andjudicial economy. or 42, In the alternative, classmay be certified because: the a. the prosecution separate of actionsby the individual members of the classwould createa risk of inconsistent varying adjudication or with respect individual classmembers to which would establish incompatiblestandards conductby defendant; of b. the prosecution separate of actionsby individual classmembers would createa risk of adjudications with respectto themwhich would, as a practicalmatter,be dispositiveof the interests other of classmembers partiesto the adjudications, substantially not or impair or impedetheir ability to protecttheir interests; and c. defendant actedor refusedto act on groundsgenerally has applicableto the class,therebymakingappropriate final and injunctiverelief with respect the members the classas a whole. to of I ) 3 4 5 6 7 8 9 l0 ll FIRSTCAUSEOtr'ACTION (violations consumerLegarRemedies civil code lzsO, of Act, et seq.) $S 43. Plaintiffhereby incorporates reference allegations by the contained in all preceding paragraphs thiscomplaint. of 44. TheCalifornia Consumer LegalRemedies ("CLRA")applies Act to defendant's actionsand conductdescribed hereinbecause extends it to that areintendedto result,or which haveresulted,in the saleof goodsto consumers. Plaintiff and the members the classare consumers of who purchase r2 goods(Guitar Hero III video games)from defendant personal, for family, or l3 t4 l5 l6 t7 18 l9 20 household pulposes, are"consumers" and underCivil Codesection1761(d). 45. The GuitarHero III videogurmes plaintiff andeachof the class that members own are"goods"within the meaning Civil Codesectionl76l(a). of 46. Defendant violatedthe CLRA in at leastthe following respects: has a. In violationof Section1770(a)(5), defendant represented has 2r 22 23 24 25 26 27 28 that the Guitar Hero III video gamehascharacteristics, uses, andbenefitsit doesnot have; b. In violationof section1770(a)(7), defendant represented has that the Guitar Hero III video gameis of a particularstandard, quality or gradewhen it is not; and c. In violationof sectionl77o(a)(9),defendant advertised has the t 2 3 Guitar Hero III video gamewith an intentnot to sell it as advertised. 47. Defendantconcealed materialfactsregardingthe Guitar Hero III from plaintiff andthe members the class,including the fact that the 4 video games of 5 GuitarHero III video gamesfor the Wii would not supportDolby pro Logic 2 or 6 stereocapabilities accordance in with defendant's advertised performance specifications.This type of informationis relied upon by consumers making in purchase decisions, is materialto the decisionto purchase costly video game. and a Had defendant disclosedsuchinformation,it would havebeenmadeknown to 7 8 9 l0 l1 r2 plaintiff and members the classthroughthe marketingand of presented advertising 13 t4 l5 16 t7 l8 l9 20 2l to plaintiff andmembers the classby defendant, of retailers,resellers, trade the press, and others. 48. Defendant'smisrepresentation failure to disclosethe truth about and GuitarHero III's inability to meetits advertised performance specifications the for Wii, and defendant's conscious concealment that fact, are unfair, misleading, of anddeceptive tradepracticesunderthe provisionsof the CLRA, Civil Code$ 1 22 (aX5),(7), and(9). 23 24 49. Defendant'sdeceptive actsandomissions occurredin the courseof productand haveoccurredcontinuously throughthe filing of 25 selling a consumer 26 27 28 50. Plaintiff and the membersof the classrelied upon defendant's I ) misrepresentations their detriment. Plaintiff andthe members the classhave to of all beendirectly andproximatelyinjuredby defendant's conduct,and suchinjury includes purchase Guitar Hero III video games, the of which they would not have purchased and/orwould not havepaid asmuchfor werethey truthfully and fully informedof materialfactsconcerning products. the 51. In accordance with Civil Code$ 1780(a),plaintiff andmembers of the Classseekinjunctiveandequitable relief asto defendant's violationsof the with CLRA; however, accordance Civil Codeg 1782(a) (d), plaintiff will in & subsequently amendthis ClassAction Complaintto includea requestfor damages. Plaintiffrequests that this court entersuchordersor judgmentsas may be necessary restore any personin interestany moneywhich may havebeen to to practices, for suchotherrelief as acquiredby meansof suchunfair business and providedin Civil Code$ 1780andthe Prayerfor Relief. SECOND CAUSE OF ACTION (Violations of Unfair CompetitionLaw, Business & Professions Code$S 17200,et seq.) in 52. Plaintiff herebyincorporates reference allegations by the contained 3 4 ) 6 7 8 9 10 ll t2 l3 l4 l5 l6 t7 l8 19 20 2l 22 23 24 paragraphs this complaint. of 25 all preceding 26 27 28 53. Plaintiff bringsthis cause actionon behalfof himself,the class, of and in his capacityas a private attorneygeneral. I ) 3 4 5 6 7 8 9 l0 II 54. Defendant'sactions,ascomprained of herein,constifuteunfair, deceptive, and/orunlawful practices cornmitted violation of in Competition Law, Bus.& prof. Code$$ 17200 seq. et 55. Defendants violatedthe "fraudulent"prong of I 7200,the,,unfair,, $ prongof $ I 7200,andthe "unlawful" prongof $ 17200by the conductalreged likely to deceivemembers the Unfair herein' Defendant's actsandpractices haveand/orare of the consuming public. 56' All of the conductalleged hereinoccurred the course defendant, in of t2 business' Defendant'swrongful conductwas part of a patternor generalized l3 course ofconductrepeated thousands on ofoccasions. t4 l5 57. Plaintiffand rnembers the classsufferedinjury in fact and lost of moneyor propertyas a result of defendant's conductbecause they would not have purchased GuitarHero III and/orpaid asmuch for it had they known the tnre natureof the product. 58' Plaintiff, on behalfofhimself andeachmember the class, of seeks l6 t7 l8 l9 20 2l 22 individualrestitution, injunctiverelie{,andotherrelief allowedundersection 23 24 25 26 27 28 17200, seq. et THIRD CAUSE OF ACTION (Untrue and MisleadingAdvertising,Business & Professions CodeS$ l7S00,et seq.) 1 ) 59. Plaintiff herebyincorporates reference allegations by the contained in all preceding paragraphs this complaint. of J 4 5 6 7 8 9 10 ll t2 60. Plaintiff bringsthis cause actionon behalfof himself the class, of and in his capacityasa privateattorneygeneral. 6l. Bus.& Prof. code $ 17500 provides that "[i]t is unlawful for any . . . corporation.. . with intent. . . to dispose . . . personal of property. . . to induce the public to enterinto any obligationrelatingthereto,to makeor disseminate cause or to be madeor disseminated beforethe public in this state,. . . any statement , . . which is untrueor misleading,and which is known,or which by the exercise of reasonable shouldbe known,to be untrueor misleading . . ." care . 62. Defendantengaged advertising marketingto the public and in and r3 l4 l5 r6 that were represented support to offeredfor saleGuitar Hero III video games r7 l8 l9 20 21 )') engaged suchadvertising in Dolby Pro Logic 2 or stereocapabilities.Defendant with the intentto induceplaintiffand members the proposed of classto purchase the herein GuitarHero III video games.In makinganddisseminating statements alleged, defendant knew, or by the exerciseof reasonablecare, should have 23 24 25 26 27 28 in were falseand misleading, violation of Bus. & Prof. Code$ that the statements 17500, seq. et above, 63. As a resultof the violationsof Section17500described of has defendant been,and will be, unjustlyenrichedat the expense plaintiffand I 2 3 4 5 6 1 the class members.Specifically, defendant beenunjustlyenriched its has by receiptof moniesreceivedfrom customers who purchased Guitar Hero III for Wii, which was advertised and/orotherwise marketed this Stateandwerepromoted in and sold throughadvertisingand marketingmaterialswhich materially misrepresent Dolby Pro Logic 2 or stereocapabilities the product. of 64. Pursuant Bus.& Prof,Code$ 17500, seq.,plaintiff andclass to et members entitledto the remedies forth below. are set F'OT]RTII CAUSE OF'ACTION (Breachof ExpressWarranty) by 65. Plaintiff herebyincorporates reference allegations the in contained paragraphs this complaint. all preceding of written warrantyto plaintiff and issuedan express 66. Defendant members the proposed of classthat the GuitarHero III video gamewas capableof 8 9 l0 ll t2 l3 14 l5 l6 t7 l8 r9 supportingDolby Pro Logic 2 or stereocapabilities. 20 2l warranty,as set forth above,by breached express the 67. Defendant 22 supplyingthe Guitar Hero III video gamethat cannotproperlytransmitaudio 23 24 25 contentthat doessuppofiDolby Pro Logic 2 or stereocapabilities. 68. Defendanthasreceivedtimely noticeof the breachof warranty 26 allegedherein. Defendanthasfailed to provideplaintiff or the class,as a warranty 27 28 replacement, Guitar Hero III gamewhich canproperlytransmitaudiocontent a I 2 3 4 5 6 7 8 9 10 11 t2 13 14 that supports Dolby pro Logic 2 or stereocapabilities. 69' As a resultof defendant's breach express of warran$r, plaintiff and class havesuffered damages an amount be determined trial. in to at FIFTH CAUSEOF ACTION of @reach Song-Beverly Act) 70' Plaintiffhereby incorporates reference allegations by the contained in all preceding paragraphs this complaint. of 71. The GuitarHero III videogames "consumer are goods,'withinthe meaning CalifomiaCivil Codeg l7gl(a). of 72. Defendant'sexpress warrantyaroseout of and/orwere relatedto the 1 5 sales the Guitar Hero III video games. of 16 t7 l8 73. As set forth morefully above,defendant failed to comply with its obligationsunderthe express warrantythat attached salesof its video games. to 74. Plaintiff andthe classhavesufferedandwill continueto suffer damages a resultof defendant's as failure to complywith its warrantyobligations, r9 20 2l 23 24 26 27 28 22 Accordingly, plaintiff andthe classareentitled recoversuchdamages to underthe song-Beverly including Act, damages pursuant Civil Code$$ l79l.l(d) and to 25 r974.) WHEREFORE, plaintiff andthe proposed classmembers request that the I 2 3 4 5 6 ., court enteran orderorjudgment againstdefendant including the foilowing: l. certificationof the actionasa classactionpursuant to Rure 23(b)Q) of the FederalRulesof civil procedure with respect ro plaintiffs claimsfor injunctiverelief,, Rule and 23(bx3) of the Federal Rulesof civil procedure with respect the claimsfor to damages, appointment plaintiff as classrepresentative and of andhis counsel ofrecord asclasscounsel; 2. Damages the amountof moniespaid for Guitar Hero III in 8 9 l0 ll t2 l3 games Wii; for 3. Actual damages, statutorydamages, punitive or trebled.amages, r4 r5 l6 t7 l8 l9 and suchotherrelief asprovidedby the statutes cited herein; 4. For pre-judgrnent postjudgmentinterestaccordingto and proof; 5. Equitablerelief in the form of restitutionand/ordisgorgement 20 2t 22 23 24 25 26 27 28 8. of all unlawfulor illegalprofitsreceived defendant a resultof by as the unfair, unlawful and/ordeceptive conductallegedin herein; 6. 7. Other appropriate injunctiverelief; The costsof bringingthis suit, includingreasonable attorneys' fees;and All otherrelief to which plaintiff andmembers the proposed of I 2 a J classmay be entitledat law or in equity. 4 5 JURY TRIAL DEMAND ThePlaintiffhereby demandstrialbyju.y of all issues hiable. a so DATED this l lth day of December,2 6 7 8 9 Alan Himmelfarb 10 Alan Himmelfarb LLC 1 l KamberEdelson, T2 l3 t4 l5 l6 2757LeonisBlvd Vernon,Califomia9005 8-23 04 Telephone: (323)585-8696 atrimmel @kamberedelson.c farb om r7 18 l9 2A 2r 22 23 24 25 26 27 28 JayEdelson EthanPreston KamberEdelson, LLC 53 WestJackson Boulevard, Suite1530 Chicago, Illinois 60604 Telephone: I 2) 589-6370 (3 epreston@kamberedelson.com son.com i edelson@kamberedel for Counsel SamuelLivineston