Perrine v. Sega of America, Inc. et al

RESPONSE

N.D. Cal.September 25, 2014

PLAINTIFFS’ OPP. TO MOT. FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 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 Mark S. Eisen (SBN - 289009) meisen@edelson.com EDELSON PC 555 West Fifth Street, 31st Floor Los Angeles, California 90013 Tel: 213.533.4100 Fax: 213.947.4251 Rafey S. Balabanian (Admitted Pro Hac Vice) rbalabanian@edelson.com Christopher L. Dore (Admitted Pro Hac Vice) cdore@edelson.com Benjamin S. Thomassen (Admitted Pro Hac Vice) bthomassen@edelson.com EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Attorneys for Plaintiffs and the Putative Class IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA JOHN LOCKE and DAMION PERRINE, individually and on behalf of all others similarly situated, Plaintiffs, v. SEGA OF AMERICA, INC. a California corporation, and GEARBOX SOFTWARE L.L.C., a Texas limited liability company, Defendants. Case No. 13-cv-01962-JD PLAINTIFFS’ OPPOSITION TO DEFENDANT GEARBOX SOFTWARE, LLC’S MOTION FOR PARTIAL SUMMARY JUDGMENT Judge: Hon. James Donato Hearing Date: October 29, 2014 Time: 9:30 a.m. Courtroom: 11 REDACTED VERSION OF DOCUMENT SOUGHT TO BE SEALED Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 1 of 31 PLAINTIFFS’ OPP. TO MOT. FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT i 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 TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................1 II. STATEMENT OF FACTS ................................................................................................3 A. The Development Agreement ............................................................................... 4 1. Under the Development Agreement, Gearbox developed ACM ................4 2. Under the Development Agreement and Master Services Agreement, Gearbox was required and entitled to promote ACM with Sega ...........................................................................................5 3. Under the Development Agreement, ...............................................8 B. Evidence Submitted by Sega Demonstrates that Gearbox Additionally Marketed and Promoted ACM—Even Against Sega’s Wishes and Instructions ............................................................................................................ 9 C. Far From Simply “Developing Code,” Gearbox Sought a Relationship With Every Single Purchaser of ACM ....................................................................... 11 III. ARGUMENT ....................................................................................................................12 A. Gearbox Fails to Provide Credible Evidence in Support of its Motion ..........13 B. Summary Judgment is Improper: Plaintiffs Can Pursue Restitution and Injunctive Relief Under the UCL and FAL .......................................................15 1. Plaintiffs are entitled to restitution because Gearbox received financial benefit from the development and sale of ACM .......................15 2. Plaintiffs have standing to seek injunctive relief—Defendants continue to show the misleading “gameplay demonstrations” to consumers online ..................................................................................18 C. Plaintiffs’ CLRA Claims Survive As a Matter of Law .....................................20 D. Gearbox Can Be Held Liable for the Express Warranties Created by its Promotion of ACM .........................................................................................24 IV. CONCLUSION ................................................................................................................25 Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 2 of 31 PLAINTIFFS’ OPP. TO MOT. FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT ii 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 TABLE OF AUTHORITIES UNITED STATES SUPREME COURT CASES: Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ........................................................................12 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ..................................................................12 UNITED STATES CIRCUIT COURT OF APPEALS CASES: Casey v. Lewis, 4 F.3d 1516 (9th Cir. 1993) ..................................................................................13 Corns v. Laborers Int'l Union of N. Am., 709 F.3d 901 (9th Cir. 2013) ........................................12 Furnace v. Sullivan, 705 F.3d 1021 (9th Cir. 2013) ......................................................................12 Hamilton v. Keystone Tankship Corp., 539 F.2d 684 (9th Cir. 1976) ...........................................13 Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055 (9th Cir. 2012) ..........................................13 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978 (9th Cir. 2007) .................................................12 UNITED STATES DISTRICT COURT CASES: Ferrington v. McAfee, Inc., 10-CV-01455-LHK, 2010 WL 3910169, (N.D. Cal. Oct. 5, 2010) ...............................................................................................18, 22 Hartless v. Clorox Co., CIV. 06CV2705JAHCAB, 2007 WL 3245260, (S.D. Cal. Nov. 2, 2007) ....................................................................................................17 Haskins v. Symantec, 13-CV-01834-JST, 2013 WL 6234610, (N.D. Cal. Dec. 2, 2013) .............................................................................................. 21-22 Henderson v. Gruma Corp., No. CV 10-04173 AHM AJWX, 2011 WL 1362188, (C.D. Cal. Apr. 11, 2011) ..................................................................................................20 In re Clorox Consumer Litig., 894 F. Supp. 2d 1224 (N.D. Cal. 2012) ........................................24 In re iPhone 4S Consumer Litig., C 12-1127 CW, 2013 WL 3829653, (N.D. Cal. July 23, 2013) ..................................................................................................21 In re iPhone Application Litig., 844 F. Supp. 2d 1040 (N.D. Cal. 2012) .....................................20 In re Sony Gaming Networks & Customer Data Sec. Breach Litig, 903 F. Supp. 2d 942 (S.D. Cal. 2012) ........................................................................16, 23 Idaho Conservation League v. Atlanta Gold Corp., 844 F. Supp. 2d 1116, (D. Idaho 2012) .................................................................................................................15 Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 3 of 31 PLAINTIFFS’ OPP. TO MOT. FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT iii 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 Koehler v. Litehouse, Inc., CV 12-04055 SI, 2012 WL 6217635, (N.D. Cal. Dec. 13, 2012) .................................................................................................19 Long v. Hewlett-Packard Co., C 06-02816 JW, 2006 WL 4877691, (N.D. Cal. Dec. 21, 2006) ................................................................................................24 McMahon v. Take-Two Interactive Software, Inc., EDCV 13-02032-VAP, 2014 WL 324008 (C.D. Cal. Jan. 29, 2014) ............................................................... 22-23 Parker v. J.M. Smucker Co., C 13-0690 SC, 2013 WL 4516156, (N.D. Cal. Aug. 23, 2013) .................................................................................................24 Pelletier v. Pac. WebWorks, Inc., CIV S-09-3503 KJM, 2012 WL 43281, (E.D. Cal. Jan. 9, 2012) ............................................................................................... 20-21 Quinones v. Potter, 661 F. Supp. 2d 1105 (D. Ariz. 2009) ...........................................................13 Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523 (N.D. Cal. 2012) ................................19, 20 Sanders v. Apple Inc., 672 F. Supp. 2d 978 (N.D. Cal. 2009) .......................................................25 S. California Water Co. v. Aerojet-Gen. Corp., CV 02-6340ABCRCX, 2003 WL 25537163 (C.D. Cal. Apr. 1, 2003) ..................................................................18 Trew v. Volvo Cars of N. Am., No. CIV–S–05–1379, 2006 WL 306904, (E.D. Cal. Feb. 8, 2006) ............................................................................................... 16-17 Wakamatsu v. Oliver, 868 F. Supp. 2d 866 (N.D. Cal. 2012) .......................................................12 Yunker v. Pandora Media, Inc., 11-CV-03113 JSW, 2013 WL 1282980, (N.D. Cal. Mar. 26, 2013) .................................................................................................22 ZL Technologies, Inc. v. Gartner, Inc., CV 09-02393 JF (RS), 2009 WL 3706821, (N.D. Cal. Nov. 4, 2009) ....................................................................................................17 STATE COURT CASES: Berry v. American Exp. Publishing, Inc., 147 Cal. App. 4th 224 (2007) .....................................21 Fieldstone Co. v. Briggs Plumbing Products, Inc., 54 Cal. App. 4th 357, (Cal. Ct. App. 1997) ...........................................................................................................24 Fundin v. Chicago Pneumatic Tool Co., 152 Cal. App. 3d 951(1984) .........................................24 Greenman v. Yuba Power Prods., 59 Cal. 2d 57 (1963) ..............................................................25 In re Tobacco II Cases, 46 Cal .4th 298 (2009) ............................................................................20 Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 4 of 31 PLAINTIFFS’ OPP. TO MOT. FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT iv 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 Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134 (2003) .................................. 17-18 People v. Sarpas, 225 Cal. App. 4th 1539 (2014) ...................................................................17, 18 Troyk v. Farmers Group, Inc., 171 Cal. App. 4th 1305 (Cal. Ct. App. 2009) ...............................17 STATUTES & RULES: Cal. Civ. Code §§ 1760-61 ............................................................................................................21 Fed. R. Civ. P. 56 ................................................................................................................... passim Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 5 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 1 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 I. INTRODUCTION1 Misrepresenting that the facts in support of its Motion for Partial Summary Judgment (the “Motion”) are “undisputed,” Defendant Gearbox Software, LLC (“Gearbox”) claims that it is entitled to prevail as a matter of law on some of Plaintiffs John Locke’s and Damion Perrine’s (“Plaintiffs”) claims—namely, those arising under the Consumer Legal Remedies Act (“CLRA”), Unfair Competition Law (“UCL”), and False Advertising Law (“FAL”), and for breach of express warranty. Its position, however, is neither supported by the facts of this case nor applicable law. First, contrary to Gearbox’s representation that the key facts in this case are “undisputed,” the core facts underlying Gearbox’s Motion are the subject of heated disagreement between Gearbox on the one hand, and Plaintiffs and Defendant Sega of America, Inc. (“Sega”) on the other. At the forefront of the Parties’ dispute is Gearbox’s bald assertion that it had no hand whatsoever in the marketing and promotion of Aliens: Colonial Marines (“ACM”) (the fraudulently-marketed video game that is the subject of Plaintiffs’ suit), and acted as nothing more than a software developer for the game—narrowly characterizing its role as limited to “writ[ing] software that would run the game” on a “work-for-hire” basis. (Def. Mot. 1.) Recent filings from both Plaintiffs, (see, e.g., Plaintiff Locke’s Motion for Class Certification (Dkt. 95) at n.2 and pp. 3-8 generally), and Defendant Sega of America, Inc. (“Sega”), however, demonstrate that this “fact” is hardly undisputed, as Gearbox claims. Sega, for example, recently explained that “Gearbox was jointly responsible for marketing ACM, often acted independently to promote it, and frequently acted without Sega’s approval [in its marketing and promotional efforts].” (Dkt. 93 at 2.2) In support—and, here, conclusively showing that these issues are, at the very least, disputed—Sega provided the Court with sworn testimony, confidential communications (both internal to Sega and with Gearbox), and citations to portions of its contracts with Gearbox. (See Declaration of John Cheng (Dkt. 93-1) and Exhibits A-W attached thereto.) What’s more, Gearbox 1 Unless otherwise noted, all references to Exhibits (“Ex.”) in this brief refer to exhibits attached to the Declaration of Rafey S. Balabanian (“Balabanian Decl.”), submitted contemporaneously herewith and in support of Plaintiffs’ Opposition to Gearbox’s Motion for Partial Summary Judgment. 2 All page numbers in reference to Sega’s Reply in Support of Preliminary Approval (Dkt. 93) and its corresponding exhibits refer to the ECF stamped number at the top of the page. Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 6 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 2 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 itself does not offer competent evidence to support its own purportedly “undisputed facts.” The short declaration upon which the Motion solely relies is inherently unreliable, and the few portions of the Gearbox-Sega contract relating to ACM (the “Development Agreement”) attached to the declaration were selectively redacted to create a document that, at first blush in this “cut-up” form, appears to support its position—but upon examination of the entirety of the document, that support falls apart. As explained below, Gearbox’s presentation of the facts is hardly “undisputed.” Second, and given that its legal arguments rely on false and unsupported statements of “fact,” Gearbox further fails to show its entitlement to judgment as a matter of law.3 Attacking Plaintiffs’ UCL, FAL, and CLRA claims, Gearbox claims that Plaintiffs cannot pursue the remedies of restitution and injunctive relief that are afforded under those statutes, despite Gearbox having received financial benefit from the unfair business practices alleged in Plaintiffs’ complaint ) and despite the fact that Gearbox continues to show its deceptive marketing statements to consumers—including to members of the putative class—on its website. And though the issue has already been considered and ruled upon in reference to Gearbox’s previous Motion to Dismiss Plaintiffs’ Claims (Dkt. 29 (Motion to Dismiss); Dkt. 40 (Order denying Motion to Dismiss))—and without pointing to any “new” evidence to support its once-rejected arguments—Gearbox again raises the argument that its ACM video game is not a tangible good subject to the CLRA. Finally, Gearbox claims that it cannot be held liable for breaching the express warranties created by its advertising statements because it was not a direct “seller” of ACM, even though it developed ACM and marketed it to consumers. None of Gearbox’s arguments stands up to scrutiny. First, Gearbox fails to provide any competent evidence in support of its Motion and, without that, cannot prevail. Second, Plaintiffs are entitled to restitution because pursuant to the Development Agreement that Gearbox negotiated 3 On a related point, Gearbox’s contention that it has stood by passively while Sega carried on its defense is likewise without merit. (Def. Mot. 1.) The record reflects that counsel representing both Defendants carried on a vigorous defense of Gearbox’s claims: jointly filing motions to dismiss Plaintiffs’ original class action complaint (Dkt. 14) and the First Amended Complaint (“FAC”) (Dkt. 29), attending and participating in a case management conference before the Court (Dkt. 42), filing Gearbox’s answer to the FAC (Dkt. 43), negotiating and moving to enter a stipulated protective order in the case (Dkt. 44), and participating in mediation and settlement discussions with the parties. (See Dkt. 93-3 ¶¶ 1-5.) Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 7 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 3 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 and agreed to, . And even accepting Gearbox’s statement that “sales [from ACM] never triggered any further payments to Gearbox,” (Def. Mot. at 5), the law is clear that restitution is an available remedy against defendants that received financial benefit from the unlawful activities that directly injured plaintiffs—even where such a defendant was not a direct recipient of a plaintiff’s money. Third, injunctive relief remains a viable and necessary remedy in this matter, as Defendants (including Gearbox) continue to display their misrepresentations to consumers online—the enjoining of which would align precisely with the objectives of California consumer protection statutes like the UCL and FAL. Fourth, and as this Court has already determined, Defendants’ ACM game is a physical and tangible good subject to regulation under the CLRA—and Gearbox’s renewed legal argument (which brings no new facts to the table here at the summary judgment stage) cannot prove otherwise. Fifth, as the developer and manufacturer of ACM, Gearbox likewise is liable for the express warranties it made to consumers via its many advertisements and promotional efforts (upon which Plaintiffs relied), even without direct contractual privity—to say nothing of the ongoing “relationship” Gearbox sought to maintain with purchasers of ACM through its sweeping EULA. Therefore, far from showing that no genuine issues of fact or law exist such that summary judgment can properly be granted in this case, Gearbox’s Motion instead presents a compelling argument for why judgment as a matter of law is improper. It should be denied. II. STATEMENT OF FACTS By now, the Court is well aware of the allegations and Plaintiffs’ claims for relief. Plaintiffs generally take issue with Gearbox’s and Sega’s marketing of ACM—alleging that (i) the representations made over the course of that marketing (i.e., that the demo versions of ACM that Defendants promoted to the public demonstrated what “actual gameplay” of ACM would look, feel, and play like) were deceptive and misleading, (ii) Plaintiffs John Locke (“Locke”) and Damion Perrine (“Perrine”) relied on those representations in deciding to pre-order ACM, and (iii) neither Locke nor Perrine would have pre-ordered ACM had they known that the demonstrated Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 8 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 4 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 versions did not reflect the quality and features of the retail version of the game. (See generally FAC (Dkt. 26) at ¶¶ 72-100.) And while Gearbox has just begun to fulfill its discovery obligations, (see Dkt. 98), the available record evidence already shows that the vast majority of the so-called “UNDISPUTED” facts set forth in Gearbox’s Motion are anything but. (See Def. Mot. at 4.) Rather, Gearbox only glosses over the relevant facts of this case; selectively redacts portions of its contract with Sega to suggest it was only hired “to develop code” for ACM (when, in fact, it was hired to do much more); and then hopes (or, given what has transpired since the filing of the Motion, “hoped”) that Sega would remain silent as to the many available facts that point towards Gearbox’s liability.4 Thus, and for the sake of correcting the record—in addition to showing why the relief Gearbox seeks here is wholly inappropriate—Plaintiffs present a more complete and accurate version of the facts relevant to Gearbox’s Motion. A. The Development Agreement. 1. Under the Development Agreement, Gearbox developed ACM. Gearbox “developed” ACM—that much is true. (See Def. Mot. at 4.) It agreed to do so pursuant to the terms of the Development Agreement, the contractual document that largely governed the relationship between Gearbox and Sega. Those terms required that Gearbox “build” the code for the game that would ultimately be sold to consumers. (See generally Ex. A (“Development Agreement Excerpts”) § 2.) But contrary to Gearbox’s overtly misleading suggestion that it was simply “Hire[d] . . . To Develop Code For [ACM],” (see Def. Mot. at 4), the Development Agreement required much, much more of Gearbox. Likewise, an additional contract entered into between Gearbox and Sega—a “Master Services Agreement”—imposed obligations on Gearbox separate and apart from the mere development of code.5 (See generally Ex. B (“Master 4 As explained in Section § III.A, infra, the entirety of the scant evidence offered in support of Gearbox’s Motion is highly suspect. Gearbox supports its Motion with a single declaration and a few portions of its primary contract with Sega (the “Development Agreement”). But although that declaration purports to be given on Steve Gibson’s “personal and firsthand knowledge,” Plaintiffs learned that much of that declaration was not “firsthand” at all. It is therefore of questionable, if any, evidentiary value in the context of Gearbox’s Motion. 5 Further, though Gearbox claims that the Development Agreement “established Sega as the ‘exclusive owner’ of copyrights in the game” (Def. Mot. 4), it neglects to mention that (See Ex. A, § 5 Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 9 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 5 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 Services Agreement”); see also Ex. F (“Excerpts from Stephen Bahl Deposition Transcript [“Bahl Tr.”]”)11:14-12:5).) 2. Under the Development Agreement and Master Services Agreement, Gearbox was required and entitled to promote ACM with Sega. Gearbox offers one fact to distance itself from the marketing of ACM (and, thus, this case)—i.e., that the Development Agreement “reserved [to Sega] the absolute right to control and direct the marketing and the sales of [ACM].” (Def. Mot. at 4 (citing Development Agreement § 6.1); see also Ex. C (“Excerpts from Steve Gibson Deposition Transcript [“Gibson Tr.”]”) 235:3- 238:14.) But Gearbox fails to (i) describe the many rights and responsibilities Gearbox was given under the plain terms of the Development Agreement to also promote the game or (ii) explain why it selectively redacted and omitted portions of the Development Agreement submitted to the Court that set forth those exact rights and responsibilities.6 Thus, while the Development Agreement reserved to Sega discretion over the marketing of ACM’s “ ,”7 (see Ex. A § 6.1), the vast majority of the promotion of and marketing for ACM occurred long before the game was packaged and ready for retail sale to consumers.8 And, as both Sega and Plaintiffs have already explained to the Court, (see Dkt. 91 at 4-6; Dkt. 93 at 2-4), Gearbox was responsible for and otherwise took part in much of this. Among other examples, the Development Agreement, along with its subsequent amendments, set out that: .”); Ex. A at GB0000002-3 .) 6 That Gearbox decided to hide such portions of the Development Agreement from the Court and the public (including from the putative class) without first asking for leave to do so (i.e., to file such information under seal) is a matter for another day. See L.R. 79-5(b) commentary (“This rule is designed to ensure that the assigned Judge receives in chambers a confidential copy of the unredacted and complete document . . . and that a redacted copy is filed and available for public review that has the minimum redactions necessary to protect sealable information.”). 7 The Development Agreement specifically defines .” (Ex. A at GB0000005.) 8 For its part, Gearbox’s Rule 30(b)(6) designee and Vice President of Marketing testified that he never “ —even though it informed the basis for his (and Gearbox’s) presumption that marketing for ACM remain in Sega’s sole discretion. (Gibson Tr. 235:3-238:14.) Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 10 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 6 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 1) Sega was required “ .” (Ex. A § 6.1.) 2) Sega and Gearbox would “ ].” (Ex. A § 6.2.) 3) Gearbox had the sole right (Ex. A § 6.7.) 4) Sega and Gearbox agreed to (Ex. D (“Third Amendment to Development Agreement”), § 2.14.) 5) Gearbox agreed to (Ex. A, § 2.5.17; Ex. E (“Fourth Amendment to Development Agreement”) at GB0000113.) Many other examples can be found throughout the Development Agreement—cutting sharply against Gearbox’s contention that it was only present to “develop code” for the game. (See Def. Mot. at 4-5.) (See also Gibson Tr. 273:23-274:5 (agreeing that ).) What’s more, Sega and Gearbox entered into an entirely separate contract—a “Master Services Agreement”—wherein Gearbox further agreed , (Gibson Tr. 295:13-297:6 (agreeing that the Master Services Agreement )), including both the (Ex. B. at GB0000220 §§ 1.1, 1.3.) Of course, Gearbox also fails to explain why the Master Services Agreement was not attached to or referenced by its Motion— even though it was primarily entered into to ”). And, of course, these many contractual rights and obligations were carried out by Gearbox. Sega paid Gearbox for the many marketing assets that Gearbox created and delivered under the terms of the Development Agreement and Master Services Agreement. (See, e.g., Gibson Tr. 280:7-285:5.) Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 11 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 7 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 and, through those webpages, directly interacted with potential purchasers of the game.9 (Ex. A, § 6.7; Gibson Tr. 35:1-36:23; Bahl Tr. 159:16-160:8.) And not to belabor the point, but Sega and Gearbox have long since admitted to jointly participating in aspects of ACM’s marketing. (FAC ¶¶ 30, 31, 38, 40; Dkt. 43 (Answer) ¶¶ 30, 31, 38, 40.) Further, Sega has additionally provided evidence of many other instances where Gearbox acted to promote ACM according to the terms of Defendants’ contractual relationship. For example, Sega has explained and provided supporting evidence that it and Gearbox “jointly attended ‘Marketing Summits’ to plan and make decisions about marketing for ACM, at which Gearbox made numerous suggestions and demands for the ACM marketing strategy.” (Dkt. 93 at 3:25-4:5 (citing Dkt. 93-24 at 1-2 (“Jan. 24, 2010 Marketing Summit Minutes”), Dkt. 93-25 at 3 (“Dec. 7, 2010 Summit Minutes”)).) Sega has also provided documentation supporting its contention that “Gearbox’s participation—Randy Pitchford’s [Gearbox’s President and CEO], in particular—was a key element in the ACM marketing strategy from the beginning.” (Dkt. 93 at 4:10-20 (citing Dkt. 93-22 at 7 (“Proposition Document” emailed from Sega to Gearbox setting forth that “Gearbox must be given a certain amount of free reign to generate PR hits [because] Randy Pitchford is a respected development celebrity and is guaranteed to be headline material in worldwide press coverage.”)).) And Sega has shown that the E3 2011 gameplay demonstration—featuring the version of ACM used to generate the 11 minute video at the center of this case, which was narrated by Randy Pitchford and described by him as showcasing “actual gameplay” of the ACM product, (see FAC at ¶¶ 30-50)— “was created entirely by Gearbox,” who additionally told Sega (just like Randy Pitchford told consumers) that “the E3 2011 demo is indeed the bar that [Sega] should use to determine where the entire game will be.” (Dkt. 93 at 4:22-5:2 (citing Dkt. 93-16 (“June 27, 2011 Email”)).) 9 Much like its filings with the Court, Gearbox’s Rule 30(b)(6) witness Steve Gibson did his best to avoid admitting that Gearbox exercised its right under the Development Agreement to (Ex. A, § 6.7), because, under Gearbox’s apparent view, (Gibson Tr. 35:21- 36:3.) Regardless, Gearbox’s other Rule 30(b)(6) designee confirmed the obvious point that ahl Tr. 159:16-160:8.) Gearbox’s gamesmanship doesn’t stand up to scrutiny. Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 12 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 8 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 In short, while the misleading factual record provided by Gearbox attempts to distance itself from playing any role in the promotion of ACM—which is, as Gearbox admits, the focus of this case, (Def. Mot. at 1, 2)—the undisputed contractual documents at the center of the Sega- Gearbox relationship belie that strategy. 3. Under the Development Agreement, . As with its direct (and mandated) involvement in the promotion of ACM, the terms of the Development Agreement also doom Gearbox’s claim that the money it received for developing (and promoting) ACM bore no relationship to sales of the game. (See Def. Mot. at 5.) The opposite is true. Under the terms of the Development Agreement that Gearbox agreed to, . (See Dkt. 93 at 7:12-13 (Sega explaining that “[t]he Sega-Gearbox Development Agreement flatly disproves [Gearbox’s contention that it did ‘not receive money’ from the sale of ACM.”) (citing Dkt. 88 at 2).) Presumably, if Gearbox was intent on distancing itself from actual game sales (i.e., as a true “work for hire”), it could have simply negotiated a flat rate to “develop code” for the game. Instead, it agreed that . Per the Development Agreement, Gearbox received payment for its work relating to ACM in one way—it would submit “ ” to Sega and, (Ex. A at GB0000004; Bahl Tr. 138:5-140:25.) The Development Agreement also set out . (Ex. A at GB0000048 (Exhibit C to Development Agreement As copies of the game were sold, Sega sent Gearbox quarterly Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 13 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 9 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 at GB0000151 ); Bahl Tr. 144:20 – 146:24.) And, of course, because both Plaintiffs paid for their copies of ACM on or before February 12, 2013, (see Ex. I (“Excerpts from Deposition of John Locke [“Locke Tr.”]”), 125:20-127:2, 134:6-135:1; FAC ¶¶ 90, 94), Sega thus 10 Here, Gearbox doesn’t explain why it kept this central fact from the Court’s attention, or failed to include those portions of the Development Agreement that tie the money Gearbox received to early sales of the game—including those sales relating to the putative class. Instead (and without explaining as much), Gearbox gestures towards the fact that because it has not yet paid back , Gearbox has not received “further” royalties from sales of ACM. (Def. Mot. at 5 (“The sales [of ACM] never triggered any further payments to Gearbox.”); Ex. A at GB0000048.) But failure to receive additional payments from sales of the game— , (see Dkt. 93 at 7:17-20), as the game is still for sale today—doesn’t negate that . Thus, Gearbox’s claim that it didn’t profit from sales of ACM is untrue. B. Evidence Submitted By Sega Demonstrates that Gearbox Additionally Marketed and Promoted ACM—Even Against Sega’s Wishes and Instructions. In addition to performing its obligations (developmental, promotional, and otherwise) under the Development Agreement, it is—at the very least—disputed as to whether Gearbox took additional efforts to promote ACM. Namely, Sega has provided evidence showing that, pursuant 10 As explained elsewhere, pre-order and first day sales of ACM were on the order of around 130,000 total units sold—including the two units purchased by Plaintiffs. (See, e.g., Dkt. 78-2 ¶ 7.) ee Ex. A at GB0000048.) Thus, it is undisputed that Gearbox already received its cut of the money that Locke, Perrine, and all of the putative class paid for ACM. Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 14 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 10 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 to an understanding reached between it and Gearbox, Gearbox had independent discretion to conduct marketing and promotion of ACM—even acting at times without Sega’s approval. (Dkt 93 at 5:4 – 7:10 (citing collected and supporting testimony/exhibits).) As noted above, section 6.7 of the Development Agreement, for instance, afforded Gearbox the sole right to (Ex. A, § 6.7.) (See also Dkt. 93-9 (“Screenshots of Gearbox Community Page”).) Sega has also explained that Gearbox likewise could access the official ACM Facebook page, where it was able to (and did) post content without Sega’s approval. (Dkt. 93 at 5:21-25.) Further, Gearbox hosted its own company-sponsored “Community Days” in 2011 and 2012, where ACM was promoted. (Dkt. 93 at 5:26-6:4.) Sega has explained that Gearbox had complete control and planning over the Community Day events at which ACM was promoted, as well as control over who attended (including even whether Sega would attend, or would help at all in the planning of the day—including the planned presentation of ACM). (Dkt. 93 at 5:26-6:4 (citing Dkt. 93-11 “Emails About Community Day 2011”).) Sega also noted that Gearbox ran its own promotions for ACM, which Gearbox “handled and hosted entirely” independently, without Sega’s assistance. (Dkt. 93 at 6:5-7 (citing Dkt. 93-23 “August 1, 2012 Email”).) Even apart from those events where Sega at least tacitly approved Gearbox’s independent marketing efforts, Sega has explained that Gearbox, at times, conducted marketing activities both unbeknownst to and unapproved by Sega, such as by making announcements to the press and public without Sega’s approval—or in spite of Sega’s overt disapproval of such leaks. To that end, and through its recent filing, Sega, describes several occasions where Gearbox had “leaked information . . . that Sega had not intended to be made public at that time, with Sega finding out only after the fact.” (Dkt. 93 at 6:8 – 7:10.) For example (and among others that Sega identified): 1) “At Gearbox’s Community Day 2011, Gearbox made announcements about ACM that weren’t discussed with Sega and that Sega had not planned to make public at that time.” (Dkt. 93 at 6 (citing Dkt. 93-12 (“June 15, 2011 Emails”).) Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 15 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 11 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 2) “In July 2012, Gearbox posted a developer profile for ACM to its website ‘without prior approval’ from Sega.” (Dkt. 93 at 6 (citing Dkt. 93-15 (“June 25, 2012 Email”).) 3) “In September 2012, Gearbox allowed an unapproved screenshot of ACM to be released to the press. The screenshot turned up on multiple press websites.” (Dkt. 93 at 6 (citing Dkt. 93-17 (“September 10, 2012 Emails”).) 4) “At Community Day 2012, Gearbox allowed a press participate to experience part of the game that Sega did not want shown at that time.” (Dkt. 93 at 6 (citing Dkt. 93-13 (“Sept. 19, 2012 Emails”).) Ultimately, the plain language of Defendants’ Development Agreement, as well as the additional evidence provided by Sega, shows that Gearbox exercised its own independent discretion—whether Sega liked it or not—to advertise and promote ACM. For Gearbox to claim otherwise is false. C. Far From Simply “Developing Code,” Gearbox Sought a Relationship With Every Single Purchaser of ACM. Further trying to distance itself from having anything to do with ACM (other than “developing code”), Gearbox contends that “when the game was sold, it was pursuant to Sega’s End User License Agreement [“EULA”], not Gearbox’s.” (Def. Mot. at 2:12-15.) Yet that’s only half the story. Gearbox’s EULA (like Sega’s EULA) was also referenced in the game manual and, by its terms, Gearbox sought to have it apply to every purchaser of ACM and define the “relationship” between it and such purchasers. The included reference to Gearbox’s EULA states: “Additional terms governing online play (game play via an internet accessible device) are available at shift.gearboxsoftware.com/eula and will govern your relationship with Gearbox Software, LLC.” (See Ex. J (“ACM Manual”) to the Balabanian Decl.) As every gaming platform and console that ran the ACM game was internet accessible (including the PlayStation 3, Xbox360, and PCs11), Gearbox—by the terms provided in the product manual—attempted to create and define the “relationship” between Gearbox and every end user of ACM. Accordingly, Gearbox’s suggestion that it had absolutely no real relationship with buyers of ACM is—like Gearbox’s other 11 It’s not a matter of dispute that the PlayStation 3, the Xbox360, and personal computers are “internet accessible devices.” See PlayStation 3 website, available at http://www.playstation.com/en-us/explore/ps3/ (describing the many online features of the PlayStation 3); Xbox 360 website, available at http://www.xbox.com/en-US/xbox-360 (describing the many online features of the Xbox 360 console). Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 16 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 12 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 “undisputed facts”—demonstrably not true.12 III. ARGUMENT Summary judgment may be granted where “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The movant bears the “burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party.” Wakamatsu v. Oliver, 868 F. Supp. 2d 866, 870 (N.D. Cal. 2012) aff'd, 12-cv-16079, 2014 WL 1568849 (9th Cir. Apr. 21, 2014) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, (1970)). Summary judgment employs a high legal standard and is appropriate only “when, viewing the evidence in the light most favorable to the non-moving party, no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Corns v. Laborers Int'l Union of N. Am., 709 F.3d 901, 907 (9th Cir. 2013). In fact, “at the summary judgment stage, the court does not make credibility determinations or weigh conflicting evidence.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). Evidence and reasonable inferences must be viewed and drawn in the light most favorable to the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). In order to defeat summary judgment, “the plaintiff must present affirmative evidence” regarding a genuine material dispute “from which a jury might return a verdict in his favor.” Id. at 257. In other words, summary judgment is inappropriate if “as to any given material fact, evidence produced by the moving party . . . conflicts with evidence produced by the nonmoving party.” Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). With the majority of evidence directly contradicting Gearbox’s largely unsupported contention that there are no undisputed facts here, and without clear support of the law, Gearbox’s 12 In addition to misrepresenting the facts of its relationship with Sega, Gearbox’s Motion and supporting declaration press additional unsupported assertions. For instance, Gearbox fails to provide any basis for its assertion that the number of consumers who purportedly viewed a “final gameplay version” of the game online (released one week before the game itself) “outnumbers all of the pre-orders.” (Def. Mot. at 2:26-3:5.) Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 17 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 13 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 request for summary judgment is unquestionably improper and should be denied. A. Gearbox Fails to Provide Credible Evidence in Support of its Motion. As an initial matter, and as described throughout Section II supra, Gearbox’s request for summary judgment should be denied outright because it fails to provide credible evidence of “undisputed” facts and, thus, is insufficient on its face. “[A] party against whom a motion for summary judgment is directed need not file any contravening affidavits or other materials but is entitled to a denial of the motion for summary judgment where the movant’s papers are insufficient on their face or themselves demonstrate the existence of a material issue of fact.” Hamilton v. Keystone Tankship Corp., 539 F.2d 684, 686 (9th Cir. 1976). An affidavit supporting summary judgment “must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c)(4). The Rule “requires that a declarant must show personal knowledge and competency to testify as to facts stated, whereas a declarant’s mere assertions that he or she possesses personal knowledge and competency to testify are not sufficient.” Quinones v. Potter, 661 F. Supp. 2d 1105 (D. Ariz. 2009). “Conclusory affidavits that do not affirmatively show personal knowledge of specific facts are insufficient.” Casey v. Lewis, 4 F.3d 1516, 1527 (9th Cir. 1993); see also Hexcel Corp. v. Ineos Polymers, Inc., 681 F.3d 1055, 1063 (9th Cir. 2012). Here, Gearbox submits a single piece of evidence to support its Motion: the declaration of Steve Gibson, Gearbox’s Vice President of Marketing, to which self-selectively redacted excerpts of the Development Agreement are attached. (Dkt. 66-1.) Stating that he has “personal and firsthand knowledge” of all the facts he attests to, Gibson offers testimony about, among other things, the 2006 discussions between Gearbox and Sega which led to Defendants entering into the Development Agreement (¶ 3); Sega and Gearbox’s respective rights and obligations under the terms of the Development Agreement (¶ 4); and the financial arrangement and money exchanged between the two entities, including Sega’s approval of and payment for Gearbox’s “milestone submissions” for ACM and all monies Gearbox received from Sega (¶¶ 6, 7, 12). This testimony is Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 18 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 14 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 central to Gearbox’s summary judgment position. (See, e.g., Def. Mot. at 14 (Gearbox’s argument seeking summary judgment on Plaintiffs’ restitution claims relying on Gibson Decl. ¶ 12).) The Gibson Declaration is wholly unreliable—a point that Mr. Gibson all but confirmed through his deposition as a Gearbox Rule 30(b)(6) designee. To begin, it is undisputed that Gibson did not join Gearbox until 2009—three years after Sega and Gearbox had entered into the Development Agreement—and thus, it is factually impossible for him to testify, based upon “firsthand or personal knowledge,” of the circumstances surrounding the formation of the relationship between Sega and Gearbox relating to ACM, as well as each party’s respective rights and obligations as contemplated during the contract’s formation. During his deposition, Gibson acknowledged as much. (See Gibson Tr. 57:13-60:19 Gibson also testified that his knowledge of the “payments and statements” exchanged between Sega and Gearbox, including Sega’s approval of and payment for Gearbox’s milestone submissions, . (Id. 67:5-23; 69:13-17; 123:12-16; 124:10-13; 209:21-24.)14 Thus, Mr. Gibson’s contention that all facts set forth in his declaration are based upon “personal and firsthand knowledge” is false—and calls into question whether any of the evidence submitted by Gearbox can support its Motion. Likewise, and as described above, the redacted portions of the Development Agreement attached to Gibson’s declaration also—by themselves—raise self-defeating disputed issues of fact. (See supra, § II.A; Ex. A, § 6 generally.) For example, Gearbox can only represent that “Sega reserved the absolute right to control and direct the marketing and the sales of the game” by (i) presenting snippets of the Development Agreement supporting its position and (ii) omitting other 13 Curiously, though (see, e.g., Gibson Tr. 58:3-5; 67:5-10), Gearbox chose not to submit a declaration from Mr. Bahl himself in support of its Motion. 14 As for Gibson’s .” (Id. 69:13-17.) Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 19 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 15 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 portions of the Development Agreement that stand contrary to Gearbox’s statements of facts. (See Def. Mot. at 4.) Even Sega has flagged this fact. (See Dkt. 93 at 3:13-24.) Stated otherwise, because the complete document upon which Gearbox so heavily relies severely undercuts its own summary judgment position, its Motion fails at the outset. Accordingly, Gearbox’s Motion wholly fails to present competent—much less “undisputed”—evidence relating to at least (i) the contract formation and actual business relationship between Sega and Gearbox, (Dkt. 66-1 ¶¶ 3, 4; Ex. A to Gibson Decl.) and (ii) Defendants’ financial dealings, including payments made and received. (Dkt. 66-1 ¶¶ 6, 7, 12.) Thus, because Gibson’s declaration is unreliable, and because both it and Exhibit A attached to that declaration raise internal disputed issues of fact, they should not be considered and, without factual support, Gearbox’s Motion fails from the start. Or, at the very least, those portions of Gibson’s declaration made without his “personal and firsthand knowledge,” (Id. ¶¶ 3, 4, 6, 7, 12), should be stricken. See Idaho Conservation League v. Atlanta Gold Corp., 844 F. Supp. 2d 1116 (D. Idaho 2012) (striking paragraph from affidavit made by an officer of defendant company that spoke to the content of negotiations leading up to decree, when it became apparent that statement could not have been made on personal knowledge, as no supporting documentation was provided for the statement, and record indicated that the officer was not present at the negotiations.). B. Summary Judgment is Improper: Plaintiffs Can Pursue Restitution and Injunctive Relief Under the UCL and FAL. Next, Gearbox is not entitled to summary judgment on Plaintiffs’ UCL and FAL claims because it does not demonstrate, as it contends, that Plaintiffs are unable to seek restitution and injunctive relief as a matter of law. 1. Plaintiffs are entitled to restitution because Gearbox received financial benefit from the development and sale of ACM. Gearbox first argues that Plaintiffs cannot seek restitution under the UCL and FAL because Gearbox allegedly did not receive any money directly from Plaintiffs’ purchase of ACM. This argument lacks support in both the facts and the law. First, Plaintiffs are entitled to restitution because Gearbox received money tied directly to individual sales of ACM . See, supra, § II.A.3. Under the Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 20 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 16 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 terms of the Development Agreement, every payment that Gearbox received from Sega relating to ACM . (See Ex. A at GB0000004 ”); Bahl Tr. 138:5-140:25.) In fact, the Development Agreement set out . (Ex. A at GB0000048.) And further, as copies of the game were sold, Gearbox received (See, e.g., Ex. G at GB0000151.) Here, and even though it chose to hide this plain evidence (and thus did not address it in the Motion), Gearbox’s only possible argument is one of structure. Namely, that (i) Gearbox structured its payment relationship with Sega (ii) when Plaintiffs paid for the game, , and that, therefore, (iii) Plaintiffs actual money But acceptance of that argument would allow any defendant to easily “escape restitution by structuring their [payment] schemes to avoid receiving direct payment from their victims.” See People v. Sarpas, 225 Cal. App. 4th 1539, 1562 (2014) (emphasis added). Here, the fact that Gearbox received Plaintiffs’ money “indirectly” (i.e., cannot doom Plaintiffs’ claims for restitution. Second, many courts have acknowledged that restitution is available from defendants who profited from an unfair business practice (i.e., through payment of services rendered) and otherwise obtained an economic benefit from class members—even without receiving payments directly. See In re Sony Gaming Networks & Customer Data Sec. Breach Litig., 903 F. Supp. 2d 942, 970 (citing Trew v. Volvo Cars of N. Am., No. CIV–S–05–1379, 2006 WL 306904, at *2 (E.D. Cal. Feb. 8, 2006) (finding restitution appropriate even where defendant did not receive Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 21 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 17 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 money directly from plaintiff if defendant otherwise profited from an unfair business practice)); Troyk v. Farmers Group, Inc., 171 Cal. App. 4th 1305, 1338 (Cal. Ct. App. 2009) (allowing restitution to be pursued against third party who did not receive money from sales and noting that “it can be inferred [that] a substantial portion of the service charges paid by class members to [the intermediary] were indirectly received by [defendants] through payments made by [the intermediary to the defendants] for services rendered.”); Hartless v. Clorox Co., CIV. 06CV2705JAHCAB, 2007 WL 3245260 (S.D. Cal. Nov. 2, 2007) (“[R]estitution is available to plaintiff if she can prove she was an “actual direct victim. Thus, plaintiff's allegations that she purchased defendant’s product is, in this Court's view, sufficient to support her claim that she is a direct victim of the alleged UCL violation.”) (internal citations and quotations omitted); ZL Technologies, Inc. v. Gartner, Inc., CV 09-02393 JF (RS), 2009 WL 3706821 (N.D. Cal. Nov. 4, 2009) (noting both that direct payment from plaintiff to defendant is not necessary to state a claim of false advertising or unlawful practices under the UCL and that California law requires “that the defendant have benefitted from the actions that resulted in an economic loss to plaintiff.”). As applied here, even disregarding that Gearbox was paid , Gearbox indisputably benefitted through payments made by Sega to Gearbox for the services rendered as part of Gearbox’s development and promotion of ACM. Gearbox cannot dispute that it received financial benefit and profited from Sega’s payment for the services it rendered for the marketing and promotion of the game—which it was required to perform under the Development Agreement, (see, e.g., supra § II.A), and which constitute the very unfair business practices at the heart of this case (the unfairness of which Gearbox does not challenge through the Motion and which Plaintiffs relied upon when deciding to pre-purchase the game). Accordingly, because Gearbox received economic benefit from its development and fraudulent promotion of ACM, it is liable for restitution to Plaintiffs. Finally, the minimal authorities cited in support of the Motion are inapposite. The facts in Korea Supply Co., for example, are far afield from this case—as, there, the plaintiff sought to recover restitution from a competitor for monies the competitor had obtained through unfair Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 22 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 18 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 business practices, even though such monies never actually belonged to the plaintiff. See Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th 1134, 1140 (2003) (“This case addresses what claims and remedies may be pursued by a plaintiff who alleges a lost business opportunity due to the unfair practices of a competitor… []” and “address[es] whether disgorgement of profits allegedly obtained by means of an unfair business practice is an authorized remedy under the UCL where these profits are neither money taken from a plaintiff nor funds in which the plaintiff has an ownership interest.”). The case did not concern, as it does here, a direct loss of money taken from the plaintiffs. What’s more, the California Court of Appeals has since clarified that Korea Supply “does not hold that a plaintiff who paid a third party money (i.e., money in which the plaintiff had a vested interest) may not seek UCL restitution from a defendant whose unlawful business practice caused the plaintiff to pay that money.” Ferrington v. McAfee, Inc., 10-CV-01455-LHK, 2010 WL 3910169, at *7 (N.D. Cal. Oct. 5, 2010); People v. Sarpas, 225 Cal. App. 4th 1539, 1561 (2014). Gearbox’s only other cited authority, S. California Water Co. v. Aerojet-Gen. Corp., CV 02- 6340ABCRCX, 2003 WL 25537163 (C.D. Cal. Apr. 1, 2003), fares no better, as the case similarly requested the “nonrestitutionary disgorgement of profits” from a defendant who had polluted the plaintiff’s water supply—rather than, as here, Plaintiffs’ direct loss of money they paid for ACM. Here, Plaintiffs have an ownership interest in the money they paid for ACM, which Gearbox financially benefited from, and are therefore, not seeking disgorgement of money unrelated to their purchase. Plus, Plaintiffs paid for copies of ACM based on Gearbox’s efforts in marketing the game, and Gearbox’s profits stemmed entirely from Accordingly, restitution from Gearbox remains an available and viable remedy. 2. Plaintiffs have standing to seek injunctive relief—Defendants continue to show the misleading “gameplay demonstrations” to consumers online. Plaintiffs likewise have a basis to seek injunctive relief, as Defendants continue to display the misleading “actual gameplay” demonstrations to consumers online—including those videos showing the non-retail, “demo” version of ACM—on both Sega’s and Gearbox’s websites and Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 23 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 19 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 YouTube channels.15 (FAC ¶¶ 37, 42.) See Ries v. Arizona Beverages USA LLC, 287 F.R.D. 523, 533 (N.D. Cal. 2012) (finding standing for injunctive relief and noting that though “the fact that [plaintiffs] discovered the supposed deception some years ago does not render the advertising any more truthful…Should plaintiffs encounter the [misleading label] at the grocery store today, they could not rely on that representation with any confidence. This is the harm California’s consumer protection statutes are designed to redress.”). Defendants have taken no action to remove their misleading advertisements from the web—where they continue to confuse and trick consumers. Thus, in this case, the availability of injunctive relief as a remedy aligns closely with the objectives of California consumer protection statutes like the UCL and FAL. See Koehler v. Litehouse, Inc., CV 12-04055 SI, 2012 WL 6217635, at *6 (N.D. Cal. Dec. 13, 2012) (finding standing to pursue injunctive relief under the UCL, CLRA, and FAL, despite plaintiff’s averment that he would not purchase the advertised product in the future, because “to do otherwise would eviscerate the intent of the California legislature in creating consumer protection statutes because it would effectively bar any consumer who avoids the offending product from seeking injunctive relief.”); Henderson v. Gruma Corp., No. CV 10-04173 AHM AJWX, 2011 WL 1362188, at *8 (C.D. Cal. Apr. 11, 2011) (denying defendant’s argument that plaintiffs did not have standing to seek injunctive relief and holding that “while Plaintiffs may not purchase the same [] products as they purchased during the class period, because they are now aware of the true content of the products, to prevent them from bringing suit on behalf of a class in federal court would surely thwart the objective of California's consumer protection laws…[] With such advertising remaining on supermarket shelves, Plaintiffs, as representatives of a class, should be entitled to pursue injunctive relief on behalf of all consumers in order to protect consumers from Defendant’s alleged false advertising.”); Ries, 287 F.R.D. at 533 (“[W]ere the Court to accept the suggestion that plaintiffs’ mere recognition of the alleged deception operates to defeat standing for an injunction, then 15 See, e.g. Aliens: Colonial Marines Gameplay Demo Walkthrough located on the Gearbox Youtube Channel, (https://www.youtube.com/watch?v=EOlzCrVFvs&list=UUSRO0JNUYTC jsk7VmMdNYKw) (last accessed Sept. 20, 2014); Aliens: Colonial Marines Gameplay Video located on the Gearbox website (http://gearboxsoftware.com/community/game/aliens-colonial- marines?page=3) (last accessed Sept. 20, 2014). Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 24 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 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 injunctive relief would never be available in false advertising cases, a wholly unrealistic result.”); In re Tobacco II Cases, 46 Cal. 4th 298, 320 (2009) (“The purpose of such [injunctive] relief, in the context of a UCL action, is to protect California’s consumers against unfair business practices by stopping such practices in their tracks.”). Accordingly, because Gearbox continues to make the misrepresentations at issue to consumers nationwide, and to deter such behavior from continuing, injunctive relief is proper. C. Plaintiffs’ CLRA Claims Survives As a Matter of Law. Attempting another bite at the apple, Gearbox next claims that Plaintiffs’ CLRA claim must fail because the ACM game is “software” and thus, not a good or service covered under the CLRA. (Def. Mot. at 8.) Not really caring that this Court16 has already ruled on this issue, Gearbox insists that “it is undisputable that the product at issue in this litigation—Aliens: Colonial Marines—is software.” (Id. at 9.) But Gearbox provides no new facts in support of this once- rejected argument and, instead, chooses to press it again. And, as before, Gearbox is wrong. Here, as Plaintiffs previously explained to the Court, (Dkt. 30 at 9-11), Plaintiffs did not merely download software (or access some online service or platform), but rather paid for and received a tangible product from a retail store. Their purchases included the ACM game discs, as well as the product cases and game manuals that came with them. (See id. at 10, n. 2.) Courts have found that such claims concerning software held in tangible mediums do in fact concern “goods” as defined by the CLRA. See, e.g., In re iPhone Application Litig., 844 F. Supp. 2d 1040, 1070-71 (N.D. Cal. 2012) (finding that the iPhone is a “good” within the meaning of the CLRA, where claims dealt with Apple’s iOS 4 software that was pre-installed on Apple’s iPhone as opposed to “free [software] apps downloaded by Plaintiffs” onto those phones); Pelletier v. Pac. WebWorks, 16 See Order Denying Defendants’ Motion to Dismiss, Dkt. 40 (issued by Judge White on Oct. 3, 2013). Gearbox inaccurately claims that the Court “deferred resolution of this issue when defendants’ prior counsel raised it at the pleading stage.” (Def. Mot. at 9.) There was no “deferral.” In reality, the Court considered the issue at length (devoting nearly half of its ten page order in analysis) and ruled that Plaintiffs had pled sufficient facts to state their claim. (Dkt. 40 at 7.) The Court did, however, invite Gearbox to revisit the point—presumably with help of additional facts to counter (if appropriate) the allegations of the FAC. (Id. (noting that it “may ultimately be persuaded” that ACM is not a good, but concluding that the facts alleged were sufficient to support its holding).) But here, at the summary judgment stage, Gearbox offers nothing “new” to challenge the facts alleged in the FAC or otherwise change the Court’s opinion. Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 25 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 21 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 Inc., CIV S-09-3503 KJM, 2012 WL 43281, at *5 (E.D. Cal. Jan. 9, 2012) (finding a “Google Business Kit” was a “good” under the CLRA over argument that the kit was principally consumer software because “plaintiff tendered money for the Kit in the expectation of receiving a physical, tangible product.”); In re iPhone 4S Consumer Litig., C 12-1127 CW, 2013 WL 3829653 (N.D. Cal. July 23, 2013) (differentiating between allegations based upon downloaded software on iPhones, i.e. applications, as opposed to specific complaints regarding “specific function[s] of the iPhone 4S [that] did not perform as advertised,” and finding the latter to be covered under the CLRA). Ultimately, since both Plaintiffs purchased physical copies of ACM, they purchased “goods” as defined by the CLRA and state a valid claim for relief. Further, concluding that tangible software products, such as ACM, are goods aligns with both the purpose of the CLRA and its instruction that it be “liberally construed,” while also giving effect to the requirement that “goods” be tangible. See Cal. Civ. Code §§ 1760-61. For this point, the detailed analysis provided by the court in Haskins v. Symantec, 13-CV-01834-JST, 2013 WL 6234610 (N.D. Cal. Dec. 2, 2013), is instructive.17 In Haskins, the court provided a detailed examination of the CLRA’s exclusion of software, pointing out that the “tangible chattels” language in the CLRA’s definitions dates from 1970—and noting that “[i]t seems unlikely that the Legislature knowingly exempted computer software from the CLRA’s scope []” and “[m]ore probably, the purpose of the language was to exempt commodities such as credit or insurance from the CLRA’s scope, since those commodities are inherently intangible promises which have no direct and concrete impact on the physical universe.” Id. at *9 (citing Berry v. American Exp. Publishing, Inc., 147 Cal.App. 4th 224, 229 (2007) to distinguish the extension of credit from the purchase of goods and services). Though the court conceded that its suspicions about the legislature’s intentions alone “would not justify a construction [expanding the statute’s terms],” it noted that the plain meaning of “tangible” means “[h]aving or possessing physical form; corporeal.” Id. (citing Black's Law Dictionary (9th ed. 2009)). As such, the court reasoned: 17 The Haskins opinion was published about two months after the Court’s CLRA ruling in this case. It’s notable that Gearbox chose to ignore it, even though it’s wholly on point, comes from within this District, and strongly supports this Court’s prior ruling. Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 26 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 22 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 Defendant's software is often purchased in physical form. Moreover, no matter how the software is delivered, it works a physical change on a physical hard drive. It possesses corporeal form in a way that credit or insurance inherently cannot. A consumer can purchase Norton Antivirus [defendant’s software product] in a store, pick it up in her hands, and carry it home. It is in that way the same as most commodities considered to be “goods” under the CLRA, and distinct from the sorts of commodities that are considered not to be. [] Defendant argued that the fact that the software is delivered through a tangible medium is irrelevant, since the disc itself is nothing but a physical mechanism for delivering a nonphysical right to use intangible software. But by slicing things that thinly, many of even the most tangible of commodities could be characterized as delivery mechanisms for the transmission of intangible things. No one would seriously dispute that a book is a “tangible chattel,” despite the fact that the physical object itself is merely a delivery mechanism for the transmission of information. Insurance contracts and credit cards, in contrast, are not delivery mechanisms; they are merely physical representations of the parties’ intangible agreement. Consumers do not purchase software discs or books to memorialize or prove the existence of an agreement; they purchase the objects to possess and use them. As a physical object purchased for a consumer’s use, a software disc is a tangible chattel.9 Id. at *9. Under this analysis, and though the Haskins court noted that “the issue presents a very close call” (citing Ferrington v. McAfee, Inc., No. 10-cv-01455-LHK, 2010 WL 3910169, at * 18- 19 (N.D. Cal. Oct. 5, 2010)), it decided that “appropriate deference to the CLRA’s direction to courts that the statute must ‘be liberally construed and applied to promote its underlying purposes’” must be given, declining to dismiss plaintiff’s CLRA count on the grounds that software available for purchase in a store via a tangible medium is not a good. Haskins, 2013 WL 6234610, at *10. Here, because Plaintiffs purchased physical copies of ACM, Haskins’ is on point. For its part, Gearbox primarily relies upon two authorities in asking the Court to reverse its prior ruling. The Court already considered one of them, Ferrington v. McAfee, Inc., No. 10-CV- 01455-LHK, 2010 WL 3910169, at *19 (N.D. Cal. Oct. 5, 2010), and declined to follow it. (See Dkt. 40 at 7 (concluding, after a four page analysis, that based upon the facts of this case, the decisions in Yunker v. Pandora Media, Inc., 2013 WL 1282980, at *13 (N.D. Cal. Mar. 26, 2013) and Ferrington “do not control the outcome here” and declining to follow).) Gearbox has provided no new facts to support a different finding. Instead, Gearbox requests that this Court disregard its previous Order per the analysis given in McMahon v. Take-Two Interactive Software, Inc., EDCV 13-02032-VAP, 2014 WL 324008 (C.D. Cal. Jan. 29, 2014). But McMahon is not the silver bullet Gearbox hopes for, as its CLRA Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 27 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 23 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 analysis does not even apply to the facts of this case. In McMahon, the court addressed the defendants’ specific argument that “they [could not] have violated the CLRA because ‘the CLRA does not apply to online video game platforms such as GTA Online.’”18 Id. at *11 (emphasis added). In support, defendants cited to In re Sony, where the court had found that the PSN (the “PlayStation Network,” Sony’s online gaming platform used by the PlayStation 3 video game console) “[was] not a good or service as defined under the [CLRA].” 903 F. Supp. 2d 942 at 972. The McMahon court followed suit, concluding that “software and online services”—like GTA Online and the PSN—“fall outside the ‘goods’ and ‘services’ covered by the CLRA.” McMahon, 2014 WL 324008, at *10 (citing In re Sony, 903 F. Supp. 2d at 972). Here, Plaintiffs nowhere allege, and Gearbox does not suggest, that ACM is an online service or online platform. Rather, the ACM game discs that Plaintiffs purchased were physical, tangible chattels—just like a book. See Haskins, 2013 WL 6234610, at *9-10. And critically, here, Plaintiffs are not attempting to bootstrap their way into the CLRA by tying an online service or platform to a physical medium, as their case is only about the physical products that were promoted and purchased.19 Gearbox likewise contends that it can prevail on Plaintiffs’ CLRA claim on the separate ground that Plaintiffs cannot pursue restitution or injunctive relief under the statute. But as Plaintiffs explained in Section III.A, supra, restitution and injunctive relief are available remedies, rendering judgment as a matter of law improper. Because Gearbox offers nothing new to allow this Court to revisit its argument—and does not challenge the pleadings upon which the Court’s prior ruling was based—Gearbox is not entitled to summary judgment on Plaintiffs’ CLRA claim either. 18 The court explained that “GTA Online” was the “online multiplayer component” of a video game (“GTAV”) sold to consumers in October 2013. Id. at *1. The case brought by consumers complained that this online service was not available at the time that GTAV was sold. Id. 19 In contrast, the plaintiffs in both McMahon and In re Sony unsuccessfully tried to salvage their CLRA claims by tying the online services/platforms at issue in each case (i.e., GTA Online in McMahon and the PSN in In re Sony) to physical mediums (i.e., the retail version of GTAV and the PlayStation gaming consoles, like the PlayStation 3). See, e.g., In re Sony, 903 F. Supp. 2d at 972 (noting, but rejecting, that “[p]laintiffs try to fit within the CLRA by arguing that Sony ‘sold’ PSPs and PS3s with the intent that they be used in conjunction with the PSN”). Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 28 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 24 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 D. Gearbox Can Be Held Liable for the Express Warranties Created by its Promotion of ACM. This Court has already held that the Defendants’ gameplay demonstrations and statements constituted “ ‘specific and unequivocal’ statements to the effect of what you see is what you will get . . . and conclude[d] that Plaintiffs have alleged facts sufficient to state a claim for breach of express warranty.” (Dkt. 40 at 10.) Many of the statements singled out in the FAC came directly from Gearbox and, here, Gearbox does not challenge that they amount to the same “what you see is what you get” promise previously identified by the Court. Instead, Gearbox simply contends that it had no part in the bargains at issue (“[t]he bargain in this case was struck between consumers and Sega”), that the transactions for ACM “were subject to Sega’s EULA,” not Gearbox’s, and that, therefore, it “had no part in the bargains or sales at issue, [and] cannot be subject to liability” on Plaintiffs’ claims for breach of express warranty. (Def. Mot. at 12 (arguing that only “sellers” can create express warranties).) Once again, Gearbox is wrong both on the facts and law. To start, numerous courts in California have consistently recognized that “[w]hen a consumer relies on representations made by a manufacturer in labels or advertising material, recovery is allowable on a theory of express warranty without a showing of privity.” Long v. Hewlett-Packard Co., C 06-02816 JW, 2006 WL 4877691, at *4 (N.D. Cal. Dec. 21, 2006) (citing Fundin v. Chicago Pneumatic Tool Co., 152 Cal. App. 3d 951, 957, 199 Cal. Rptr. 789 (1984)) (emphasis added); see also Fieldstone Co. v. Briggs Plumbing Products, Inc., 54 Cal. App. 4th 357, n. 10, 62 Cal. Rptr. 2d 701 (Cal. Ct. App. 1997) (“As a general rule, privity of contract is a required element of an express breach of warranty cause of action. However, there is an exception where plaintiff's decision to purchase the product was made in reliance on the manufacturers’ written representations in labels or advertising materials.”) (citations omitted, emphasis added); In re Clorox Consumer Litig., 894 F. Supp. 2d 1224, 1236 (N.D. Cal. 2012); Parker v. J.M. Smucker Co., C 13-0690 SC, 2013 WL 4516156 (N.D. Cal. Aug. 23, 2013) (“Moreover, Plaintiff is correct that California law provides an exception in express warranty claims arising from affirmative representations made in labels.”) (internal citation and quotations omitted). As these and other cases show, and contrary to Gearbox’s insistence that a consumer’s breach of express warranty Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 29 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 25 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 claim can only lie against a “seller” of a product, (Def. Mot. at 12), non-sellers, like manufacturers, are likewise liable for breaching express warranties made to consumers. See, e.g., Sanders v. Apple Inc., 672 F. Supp. 2d 978, 989 (N.D. Cal. 2009) (noting that “timely notice of a breach of an express warranty is not required where the action is against a manufacturer and is brought “by injured consumers against manufacturers with whom they have not dealt.”) (quoting Greenman v. Yuba Power Prods., 59 Cal. 2d 57, 61, 27 Cal. Rptr. 697, 377 P.2d 897 (1963). Here, Gearbox—as ACM’s developer—was the functional equivalent of the game’s manufacturer, as it “built” the game by developing its software code .” (See Ex. A, §§ 2.2, 2.5 ( ) And as detailed throughout the FAC, many of the pre-release representations about ACM were made expressly by Gearbox—including by its President, Randy Pitchford. (FAC ¶¶ 31, 34, 44.) Sega has explained that certain of these representations—including the “2011 E3 demo” at the heart of the FAC—were “created entirely by Gearbox,” (Dkt. 93 at 3), as were many of Gearbox’s independent advertising activities relating to ACM. (See supra, § II.A.) And contrary to Gearbox’s gloss over the facts, it (like Sega) sought to maintain a “relationship” with every purchaser of ACM through the inclusion of its EULA with the copies of ACM sold to the public. 20 Plaintiffs additionally pled specific reliance upon Gearbox’s promotional statements and advertising materials, the very same information that forms the basis for the express warranties at issue here. Thus, though Plaintiffs purchased ACM from other parties (e.g., Locke purchased from Amazon (Locke Tr. 62:8-13; Dkt. 95-8 ¶ 2), Gearbox’s specific warranties regarding ACM (made through its advertising statements and other representations as the game’s developer) are actionable. IV. CONCLUSION Gearbox has neither shown the absence of genuine issues of material fact nor demonstrated that it is entitled to judgment as a matter of law. Accordingly, Plaintiffs respectfully request that this Court deny Gearbox’s Motion for Partial Summary Judgment in its entirety. 20 Further speaking to Gearbox’s ongoing relationship with end users (see supra, n. 4), Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 30 of 31 PLAINTIFFS’ OPP. TO MOTION FOR CASE NO. 13-cv-01962-JD PARTIAL SUMMARY JUDGMENT 26 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 Dated: September 25, 2014 JOHN LOCKE, individually and on behalf of a class of similarly situated individuals, By: /s/ Rafey S. Balabanian One of Plaintiff’s Attorneys Mark S. Eisen (SBN - 289009) meisen@edelson.com EDELSON PC 555 West Fifth Street, 31st Floor Los Angeles, California 90013 Tel: 213.533.4100 Fax: 213.947.4251 Rafey S. Balabanian (Admitted Pro Hac Vice) rbalabanian@edelson.com Christopher L. Dore (Admitted Pro Hac Vice) cdore@edelson.com Benjamin S. Thomassen (Admitted Pro Hac Vice) bthomassen@edelson.com EDELSON PC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Tel: 312.589.6370 Fax: 312.589.6378 Attorneys for Plaintiffs and the Putative Class Case 3:13-cv-01962-JD Document 102 Filed 09/25/14 Page 31 of 31