(Individually And On Behalf Of The Class)   (Individually And On Behalf Of The Class)   (On Behalf Of Plaintiff and on behalf of the Class)   1.  Compensatory damages in an amount according to proof;   1.  A declaration that Apple’s sales practices as described herein are wrongful,  unfair, unconscionable and in violation of California law;   1.  Declaration that Apple’s sales practices as described herein are  wrongful, unfair, unconscionable and in violation of California law;   2.  Prejudgment interest at the maximum rate permitted by applicable law; and   2.  Enjoining Apple from further use of misrepresentative descriptions  and claims in its advertising in violation of California law;   2.  Enjoining Apple from further use of misrepresentative descriptions and  claims in the advertising in violation of California law;   3.  Restitution and disgorgement of profits;   3.  Such other relief as this Court deems just and proper.  3.  Costs and disbursements assessed by Plaintiff in connection with this  action, including reasonable attorneys’ fees, pursuant to applicable law; and   4.  Costs and disbursements assessed by Plaintiff in connection with  this action, including reasonable attorneys’ fees, pursuant to  applicable law; and   4.  Such other relief as this Court deems just and proper.  5.  Such other relief as this Court deems just and proper.  62.  Plaintiff incorporates by reference the preceding paragraphs.   63.  Apple entered into a contract with the Plaintiff and each member of the  putative Class when Plaintiff and Class members purchased Season 5 of “Breaking Bad”  through Apple’s iTunes service.   64.  That contract provided that in exchange for a fixed sum, $21.99 in the case  of the Plaintiff, Apple would provide the purchaser with access to “all future and current  episodes” of Season 5 of Breaking Bad.   65.  “Season 5” of Breaking Bad consists of the 16 episodes airing over the  course of 2012 and 2013.  It is so defined by the individuals writing, producing and airing  the program and has been advertised as such.   66.  Prior to their purchase of the Season 5 Season Pass, Apple never  informed Plaintiff or Class members that when Apple referred to “Season 5,” unlike the  producers, writers, and directors of the show and the network on which it airs, it meant  something other than all 16 episodes of Season 5.   Case5:13-cv-04145-EJD   Document1   Filed09/06/13   Page13 of 20 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  14   67.  Thus, when Apple failed to make the final 8 episodes of Season 5 of  Breaking Bad available to the Plaintiff and the putative Class, pursuant to the terms of  the contract, Apple breached that contract.   68.  Because the Plaintiff and each member of the putative Class were  deprived the benefit of the bargain and either forced to pay an additional $22.99 for  those episodes or simply not allowed to view them, they were damaged by the breach.  WHEREFORE, Plaintiff and the Class demand judgment as follows:   69.  Plaintiff incorporates by reference the preceding paragraphs.   70.  Pursuant to § 1770 of the California Consumers Legal Remedies Act:  (a)  The following unfair methods of competition and unfair or  deceptive acts or practices undertaken by any person in a  transaction intended to result or which results in the sale or lease of  goods or services to any consumer are unlawful:  (5)  Representing  that  goods  or  services  have  sponsorship, approval, characteristics, ingredients, uses,  benefits or quantities which they do not have or that a  person has a sponsorship, approval, status, affiliation or  connection which he or she does not have….  (9)  Advertising goods or services with intent not to sell  them as advertised….   (14)  Representing that a transaction confers or involves  rights, remedies or obligations which it does not have or  involve, or which are prohibited by law….   71.  The Plaintiff is a “consumer” as defined by California Civil Code § 1761(d).  Case5:13-cv-04145-EJD   Document1   Filed09/06/13   Page14 of 20 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  15   72.  Similarly, all members of the putative Class are U.S. residents and each is  a “consumer” as defined by California Civil Code § 1761(d).   73.  Each putative Class member’s purchase of Season 5 of Breaking Bad from  Apple was a “transaction” as defined by California Civil Code § 1761.   74.  Apple represented to the Plaintiff and the putative Class that the service  Plaintiff was purchasing – electronic access to Season 5 of Breaking Bad through the  Defendant’s iTunes service – contained a greater quantity of episodes (16) than were in  fact provided, in violation of § 1770(a)(5).   75.  Apple represented to the Plaintiff and the putative Class that the service  Plaintiff was purchasing – electronic access to Season 5 of Breaking Bad through the  Defendant’s iTunes service – had a characteristic of being the complete Season 5 of  Breaking Bad when, in fact, it was not.  This was done in violation of § 1770(a)(5).   76.  Apple advertised that in exchange for a fixed fee, the Plaintiff and the  putative Class would receive “all current and future episodes” of Breaking Bad:  Season 5.  Apple had no intention of providing those episodes.  This was done in  violation of § 1770(a)(9).   77.  Apple represented to the Plaintiff and the putative Class that it would have  the right to download all current and future episodes of Breaking Bad, Season 5.  But  Apple never intended to grant Plaintiff the right to download all 16 episodes of Season 5,  in violation of § 1770(a)(14).   78.  § 1781 of the California Consumers Legal Remedies Act indicates that:  (a)  Any consumer entitled to bring an action under Section 1780  may, if the unlawful method, act, or practice has caused damage to  other consumers similarly situated, bring an action on behalf of  himself and such other consumers to recover damages or obtain  other relief as provided for in Section 1780. (b)  The court shall  permit the suit to be maintained on behalf of all members of the  represented class if all of the following conditions exist:  Case5:13-cv-04145-EJD   Document1   Filed09/06/13   Page15 of 20 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  16  (1)  It is impracticable to bring all members of the class  before the court.  (2)  The questions of law or fact common to the class are  substantially similar and predominate over the questions  affecting the individual members.  (3)  The claims or defenses of the representative plaintiff  are typical of the claims or defenses of the class.  (4)  The representative plaintiff will fairly and adequately  protect the interests of the class.   79.  Thus, the General Assembly has specifically provided for class treatment  of cases of this nature.   80.  Plaintiff explicitly seeks only equitable relief under the California  Consumers Legal Remedies Act.  WHEREFORE, Plaintiff and the Class demand judgment as follows:   81.  Plaintiff incorporates by reference the preceding paragraphs.   82.  Bus. & Prof. Code § 17200 states, in relevant part, that:  [U]nfair competition shall mean and include any unlawful, unfair or  fraudulent business act or practice and unfair, deceptive, untrue or  misleading advertising and any act prohibited by Chapter 1  (commencing with Section 17500) of Part 3 of Division 7 of the  Business and Professions Code.  Case5:13-cv-04145-EJD   Document1   Filed09/06/13   Page16 of 20 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  17   83.  Apple’s acts, conduct and practices, as alleged herein, were unlawful in  that Apple’s conduct violated the Consumer Legal Remedies Act, California Civil Code  §§ 1750, et seq., as specified and alleged in Count II of this Complaint.   84.  Apple’s acts, conduct and practices, as alleged herein, were unfair in that  Apple affirmatively misrepresented at all times to Plaintiff and Class members that a  Season Pass to Season 5 of Breaking Bad would entitle the consumer to all 16 of the  Season 5 episodes when, in fact, the 8 episodes aired in 2013 would be available only  after purchasing a new Season Pass.  This misrepresentation and/or omission offends  established public policy and/or is immoral, unethical, oppressive, unscrupulous and/or  substantially injurious to Plaintiff and Class members in that they were led to believe that  the Season Pass for Season 5 of Breaking Bad had qualities and benefits that it does  not have.   85.  The injury to Plaintiff and Class members greatly outweighs any alleged  countervailing benefit to consumers or competition under all of the circumstances, and  served no purpose but to mislead the public and line Apple’s pockets.   86.  There were reasonably available alternatives to further Apple’s legitimate  business interests, other than the conduct described herein.   87.  Apple’s statements regarding the sale of Season 5 of Breaking Bad on its  iTunes service were also fraudulent in that they deceived and/or likely to have deceived  Plaintiff and Class members.  Specifically, Apple intentionally and misleadingly  advertised that the Season Pass for Season 5 of Breaking Bad would entitle customers  to the entire 16-episode season, when that was not the case.   88.  Because Apple has violated the unfair competition law, Bus. & Prof. Code  §§ 17200, et seq., an action under Bus. & Prof. Code § 17206 is proper and necessary  Case5:13-cv-04145-EJD   Document1   Filed09/06/13   Page17 of 20 1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  18  to prevent Apple from continuing to engage in deceptive advertising practices and  preying on consumers.   89.  As a result of Apple’s unlawful, unfair and fraudulent business practices,  Plaintiff and Class members have suffered injury in fact and have lost money or property.   Pursuant to California Bus. and Prof. Code § 17203, Plaintiff and Class members are  therefore entitled to equitable relief, including restitution of all monies paid to and/or  received by Apple; disgorgement of all profits accruing to Apple because of its unfair and  improper business practices; a permanent injunction enjoining Apple from its unfair  business activities; and any other equitable relief the Court deems proper.  WHEREFORE, Plaintiff and the Class demand judgment as follows:  