Weeks et al v. Google LLC

COMPLAINT against Google LLC (Filing fee $ 400, receipt number 0971-12090018.). Filed by Patricia Weeks, Waleed Anbar.

Northern District of California, cand-5:2018-cv-00801

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1 Daniel C. Girard (State Bar No. 114826) Jordan Elias (State Bar No. 228731) 2 Adam E. Polk (State Bar No. 273000) 3 Simon S. Grille (State Bar No. 294914) GIRARD GIBBS LLP 4 601 California Street, Suite 1400 San Francisco, California 94108 5 Telephone: (415) 981-4800 6 dcg@girardgibbs.com je@girardgibbs.com 7 aep@girardgibbs.com sg@girardgibbs.com 8 9 Counsel for Plaintiffs 10 [Additional Counsel on Signature Page] 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 SAN JOSE DIVISION 14 15 PATRICIA WEEKS and WALEED ANBAR, Case No. 16 on behalf of themselves and all others similarly 17 situated, CLASS ACTION COMPLAINT FOR: 18 Plaintiffs, 1. Breach of Express Warranty; v. 2. Breach of the Implied Covenant of Good 19 Faith and Fair Dealing; 20 GOOGLE LLC, 3. Breach of the Implied Warranty of Merchantability; 21 Defendant. 4. Violation of the Magnuson-Moss Warranty 22 Act, 15 U.S.C. § 2301, et seq.; 5. Violation of California's Unfair 23 Competition Law; 6. Violation of California's Consumers Legal 24 Remedies Act; and 25 7. Fraudulent Concealment. 26 DEMAND FOR JURY TRIAL 27 28 CLASS ACTION COMPLAINT 1 Plaintiffs Patricia Weeks and Waleed Anbar, individually and on behalf of all others similarly 2 situated, allege as follows against Defendant Google LLC. 3 SUMMARY OF THE ACTION 4 1. This is a consumer protection class action on behalf of individuals who purchased Pixel 5 and Pixel XL smartphones. The Pixel phones contain a manufacturing defect that renders their 6 microphone and speakers prone to malfunctioning and failing. The defect compromises the phone's 7 core functionality, preventing consumers from communicating by voice call and from using features 8 like Google Assistant (a counterpart to Apple's "Siri" for the iPhone). 9 2. Google designed, manufactured, marketed, and sold the Pixel phones. It promoted the 10 Pixel phones as premium products and priced them from $649 to $869. Yet, immediately after 11 launching the phones, customers complained directly to Google of "severe microphone issues." 12 Despite receiving hundreds of complaints shortly after launch—and admitting the phones have a 13 "faulty microphone"—Google continues to sell the Pixel phones without telling purchasers about the 14 microphone defect. Moreover, instead of fixing the defective Pixel phones, providing refunds, or 15 replacing the devices with non-defective phones, Google has replaced defective phones with other 16 defective phones, resulting in many consumers repeatedly experiencing the microphone defect. 17 3. The microphone defect in the Pixel phones is substantially certain to manifest and 18 existed within the phones when sold. Plaintiffs were consequently deprived of the benefit of their 19 bargain, and seek relief through this action. 20 PARTIES 21 4. Plaintiff Patricia Weeks is a citizen of the state of Florida. 22 5. Plaintiff Waleed Anbar is a citizen of the state of California. 23 6. Defendant Google LLC is incorporated under Delaware law and maintains its principal 24 place of business at 1600 Amphitheater Parkway, Mountain View, California 94043. 25 JURISDICTION AND VENUE 26 7. This Court has original jurisdiction under 28 U.S.C. § 1331 based on Plaintiffs' claims 27 under the Magnuson-Moss Warranty Act, 15 U.S.C. § 2301, et seq. The Court has supplemental 28 jurisdiction over Plaintiffs' state law claims under 28 U.S.C. § 1367. 1 CLASS ACTION COMPLAINT 1 8. This Court also has jurisdiction over this lawsuit under the Class Action Fairness Act, 28 2 U.S.C. § 1332, because this is a proposed class action in which: (1) there are at least 100 Class 3 members; (2) the combined claims of Class members exceed $5,000,000, exclusive of interest, 4 attorneys' fees, and costs; and (3) Plaintiffs and Defendant are domiciled in different states. 5 9. The Court has personal jurisdiction over Google LLC because its principal place of 6 business is within this District and it has sufficient minimum contacts in California to render the 7 exercise of jurisdiction by this Court proper and necessary. 8 10. Venue is also proper in this District under 28 U.S.C. § 1391(b) because Google's 9 principal place of business is within this District and a substantial part of the events or omissions giving 10 rise to the claims occurred in this District. 11 INTRADISTRICT ASSIGNMENT 12 11. Assignment to the San Jose Division is appropriate under Local Rule 3-2(c) because 13 Google is headquartered in Mountain View, California and a substantial part of the conduct at issue in 14 this case occurred in Santa Clara County. 15 PLAINTIFF-SPECIFIC ALLEGATIONS 16 Plaintiff Patricia Weeks 17 12. Patricia Weeks purchased a Pixel phone from the Google Store for $749 on December 2, 18 2016. 19 13. While engaging in pre-purchase research about the phone, Dr. Weeks encountered 20 several advertisements portraying the phone as high-quality and well-functioning, including: (1) 21 advertisements promoting Google Assistant with the catch phrase, "Hey Google"; and (2) ads 22 comparing Google Assistant favorably to Siri. She did not see any disclosure that the phones' 23 microphones were prone to fail. Google's advertisements materially influenced Dr. Weeks's decision 24 to buy a Pixel. 25 14. Dr. Weeks never had an opportunity to negotiate the terms of purchase or warranty with 26 Google. She was not aware of any disclaimer of or limits on warranty coverage prior to purchase. 27 15. After only a few weeks of normal usage (i.e., making phone calls, sending text 28 messages, using applications, and accessing the internet), Dr. Weeks's phone began to malfunction. 2 CLASS ACTION COMPLAINT 1 She first noticed that something was wrong when she couldn't use the Google Assistant feature. She 2 soon discovered that callers on the other end of the line couldn't hear her speaking. 3 16. Dr. Weeks contacted Google on March 2, 2017 to report her microphone failure and 4 seek assistance. A Google representative tried to troubleshoot the problems, but was unable to fix her 5 phone. The Google representative acknowledged the phone was defective and admitted to Dr. Weeks 6 that Google was aware of the problems. 7 17. Dr. Weeks asked Google for her money back or for a new, non-defective replacement. 8 Google refused. 9 18. As a result of the microphone defect and Google's failure to provide warranty service, 10 Dr. Weeks no longer uses her Pixel and instead uses a replacement phone. 11 19. Dr. Weeks did not know that the Pixel phones have defective microphones when she 12 bought her phone. Had Google disclosed the defect to her, she would not have bought a Pixel or would 13 have paid substantially less for it. 14 Plaintiff Waleed Anbar 15 20. On October 25, 2016, Waleed Anbar purchased a Google Pixel phone from Google for 16 $649. He made this purchase in California. 17 21. Mr. Anbar purchased the Pixel because—prior to purchase—he saw advertisements 18 touting the quality of the Pixel, including ads demonstrating voice call functionality and the Google 19 Assistant feature. The latter feature was the primary reason Mr. Anbar bought a Pixel phone. At no 20 point did he see any acknowledgment by Google that the phone was susceptible to microphone failure 21 or that such failure could make it impossible to use Google Assistant. The advertisements Mr. Anbar 22 encountered touted the phones as high-quality devices with superior functionality to competing 23 products. These advertisements materially influenced Mr. Anbar, leading him to buy a Pixel. 24 22. Mr. Anbar had no opportunity to negotiate the terms of purchase of his phone, or the 25 terms of Google's warranty. He was not aware of any limitation or disclaimer of warranty coverage 26 before he bought his phone. 27 23. After approximately six months of ownership, the sound quality on Mr. Anbar's Pixel 28 began to deteriorate. Over the next eight months, the problem became worse—the built-in microphone 3 CLASS ACTION COMPLAINT 1 stopped working, the headphone jack became unusable, and the Google Assistant feature was rendered 2 useless. 3 24. Mr. Anbar contacted Google on January 23, 2018. Google refused to refund Mr. 4 Anbar's money or replace his phone with a non-defective model, and instead referred him to 5 uBreakiFix—Google's designated third-party repair provider—for paid repairs. After learning the 6 repairs would cost as much as a brand new device, Mr. Anbar bought a replacement phone. 7 25. Mr. Anbar did not know the Pixel was defective before purchasing the phone. Had he 8 known, he would not have bought the Pixel or would have paid substantially less for it. 9 26. Plaintiffs each use Google's search engine, and prefer the Android operating system to 10 Apple's operating system. Because of their experience with the Pixel phones, however, they are unable 11 to depend on Google's representations about its Pixel line of products. Google continues to advertise 12 the Pixels' high quality and the functionality of the Google Assistant feature. As a result, though 13 Plaintiffs would like to buy more Google mobile phone products, they will not unless Google takes 14 sufficient steps to cure the microphone defect and ensure the accuracy of its representations about its 15 Pixel product line. 16 COMMON FACTUAL ALLEGATIONS 17 27. Cell phones have increasingly become a necessity of life in the United States. 18 28. Approximately nine out of every ten Americans owns a cell phone. Forty-one percent of 19 American households, encompassing 93 million adults and nearly 35 million children, have no landline, 20 and use cell phones exclusively. 21 29. The average American consumer replaces their cell phone every 30 months.1 22 Google Launches the Pixel Phones 23 30. Marketed as "the first phone by Google," Google released the Pixel phones on October 24 20, 2016. Google controls the design, development, marketing, sales, and support for the Pixel phones. 25 The phones bear Google's logos and the phrase "Made by Google." Google directed virtually every 26 1 Thomas Gryta, Americans Keep Their Cellphones Longer, Wall Street Journal (Apr. 18, 2016), available at 27 https://www.wsj.com/articles/americans-keep-their-cellphones-longer-1461007321 (last visited Feb. 7, 2018); Andrew Meola, People are Taking Longer to Upgrade Their Smartphones, Business Insider (June 30, 3016), 28 available at http://www.businessinsider.com/people-are-taking-longer-to-upgrade-their-smartphones-2016-6 (last visited Feb. 7, 2018). 4 CLASS ACTION COMPLAINT 1 aspect of the development and manufacture of the phones. Google also contracted with HTC to help 2 build the devices. 3 31. Designed to compete directly with Apple's iPhone, the Pixel phones are premium 4 smartphones priced between $648 and $849 on release, significantly higher than the average 5 smartphone price of approximately $550. 6 32. Google sells the Pixel phones directly to consumers as well as through authorized 7 resellers. Google extends a written warranty to those who "purchased [the] phone from Google or its 8 authorized resellers."2 Under its express warranty, "Google warrants that a new phone. . . will be free 9 from defects in materials and workmanship under normal use. . . ."3 10 33. Google announced the phone at a launch event in San Francisco on October 4, 2016. 11 The Youtube video of the event was linked to by technology publications and viewed over 500,000 12 times (including by each Plaintiff here).4 The Google Assistant's functionality was a centerpiece in 13 Google's marketing presentation on the Pixels, along with the devices' high quality and Google's 14 overall responsibility for them. Representations Google made concerning its phone include: 15  "Today, I am very excited to introduce you to a new phone made by Google. We call it Pixel." 16  "The first phone made by Google inside and out." 17  "When I look ahead at where computing is headed, it's clear to me that we are evolving from a 18 mobile first to