Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 1 of 65

1
2
3
4
5
6

Cory S. Fein
(California Bar No. 250758)
Cory Fein Law Firm
712 Main St., #800
Houston, TX 77002
Telephone: (281) 254-7717
Facsimile: (530) 748-0601
Email:cory@coryfeinlaw.com

7
8

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

9
10
11
12
13
14

JONATHAN
MAKCHAROENWOODHI,
COLTON WINFIELD and
EDWARD BEHELER,
individually and on behalf of all
others similarly situated,

15
16
17
18
19
20

Case No. 5:17-cv-2185
COMPLAINT
CLASS ACTION
DEMAND FOR JURY TRIAL

Plaintiffs,
v.
HUAWEI DEVICE USA, INC.
and GOOGLE, INC.,
Defendants.

JURY TRIAL DEMANDED

21
22
23
24
25
26
27
28

CLASS ACTION COMPLAINT
Plaintiffs Jonathan Makcharoenwoodhi, Colton Winfield and Edward Beheler
(“Plaintiffs”), individually and on behalf of all others similarly situated, bring this class
action against Defendants Huawei Device USA, Inc. (“Huawei”) and Google, Inc.
(“Google”) (collectively “Defendants”), and in support thereof aver the following based
upon personal information and the investigation of their counsel, and upon information
and belief as to all other allegations:
Complaint, Case No. 5:17-cv-2185

1

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 2 of 65

1
2
3

INTRODUCTION

4
5
6
7
8
9
10
11

1.

This is a class action lawsuit brought by Plaintiffs on behalf of

themselves and a class of similarly situated consumers who purchased Google Nexus
6P smartphones (the “Phones” or “Class Phones”).
2.

Defendants touted the Nexus 6P as a first-class smartphone with best-in-

class battery capabilities, including battery charging and lifespan.
3.

Below is an advertisement in which Defendants prominently promoted

and advertised these battery-related capabilities in Class Phones:1

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

Image from https://www.google.com/nexus/6p/ (last visited April 19, 2017).

Complaint, Case No. 5:17-cv-2185

2

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 3 of 65

1
2
3

4.

Defendants also touted the Class Phones through other mediums as

having superb battery life and performance:2

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

5.

As discussed below, Google executives also touted the Nexus 6P as

superior to the iPhone 6 Plus in charging capabilities.
6.

Despite these large claims about battery capabilities and Class Phone

performance, and as discussed in detail below, the Class Phones are defective because
they are prone to (i) enter an endless bootloop cycle which renders them unresponsive
and unusable (the “Bootloop Defect”) and (ii) severe battery drainage which causes
Class Phones to stop working prematurely (the “Battery Drain Defect”) (collectively
the “Defect”). As the numerous complaints posted on product reviews, blogs and other
consumer resources reveal, countless consumers have experienced this Defect in their
Class Phones. At all relevant times, Defendants knew of or should have known of these
2

Image from http://www.androidauthority.com/leaked-presentation-reveals-the-nexus6p-will-feature-a-big-3450mah-battery-644759/ (last visited April 19, 2017)
Complaint, Case No. 5:17-cv-2185

3

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 4 of 65

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

issues in the Class Phones, yet failed to disclose them in order to increase their sales of
Class Phones.
7.

When the Bootloop Defect occurs, it will often manifest without warning,

and puts the Phones into a death-spiral wherein they will suddenly switch off and then
turn back on, and remain stuck on the Google boot-up screen. When this occurs, the
Class Phones are completely unresponsive and non-functional, and they fail to proceed
past the start-up screen and on to the home screen.
8.

When the Defect manifests as the Battery Drain Defect, it causes Class

Phone batteries to die and Class Phones to turn off despite showing as high as 70-80%
battery life in some cases. In the case of Plaintiff Makcharoenwoodhi, his phone began
shutting down with 80-85% battery charge remaining. His Phone would only get about
10 minutes of use when he would remove the Phone from a charger, even though the
Phone displays a full charge.
9.

This early shut off/battery drain problem is reportedly exacerbated by

cold weather. When the battery issues manifest, the Phones will not turn back on until
they are plugged into a charger. When the Phones do eventually turn back on, the
battery life remains right around the level they were at when the Phone turned off and
the battery died.
10.

The Defect manifests both while Class Phones are inside and outside of

the warranty period. It has left consumers across the country with Google Nexus 6P
smartphones that do not work as intended and, in instances where the Defect manifests
even slightly outside of the warranty period, with no recourse. For those Class Phones
that manifest the Defect out of warranty, Defendants typically decline to provide any
remedy whatsoever, leaving consumers with the option to accept a Phone that has
reduced and operability or to procure a repair or replacement at their own expense.
Several consumers, including Plaintiff Makcharoenwoodhi, experienced the Defect
while still in warranty, yet still had their warranty claim or efforts rejected and denied.
Complaint, Case No. 5:17-cv-2185

4

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 5 of 65

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

Other consumers similarly report that during the warranty period, Defendants decline to
provide warranty coverage for the Defect, or hide behind a cosmetic issue (such as a
cracked bezel or scratched screen) in order to avoid providing a replacement under the
warranty.
11.

Even in instances where Defendants have replaced or repaired Class

Phones under warranty, consumers have had to wait several days or weeks to receive an
accommodation, which often ends up being a refurbished Phone that suffers from the
same Defect. Indeed, numerous consumers report that they have had to obtain multiple
replacement Phones for the same problem. As such, the repair/replacement warranties
offered by Defendants fail in their essential purpose.
12.

Defendants knew or should have known about the Defect, and despite this

knowledge, they fail to disclose the Defect to purchasers of Class Phones. They then
cashed in on this omission by routinely refusing to provide repairs free of charge.
13.

As a result of the Defect, and the monetary costs associated with repairs

and replacements, Plaintiffs and Class members have suffered injury in fact, incurred
damages, and have otherwise been harmed by Defendants’ conduct.
14.

Accordingly, Plaintiffs seek redress for Defendants’ breach of express

and implied warranties and violations of numerous federal and state consumer
protection laws. Plaintiffs also seek recovery for monetary and equitable relief for
Defendants’ conduct described herein.
JURISDICTION
15.

This Court has subject matter jurisdiction over this action pursuant to 28

U.S.C. § 1331 because it arises under the laws of the United States and pursuant to 28
U.S.C. § 1332(d) because: (i) there are 100 or more class members; (ii) there is an
aggregate amount in controversy exceeding $5,000,000, exclusive of interest and
costs; and (iii) because at least one plaintiff and defendants are citizens of different

28
Complaint, Case No. 5:17-cv-2185

5

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 6 of 65

1
2
3

states. This Court has supplemental jurisdiction over the state law claims pursuant to
28 U.S.C. § 1367.
INTRADISTRICT ASSIGNMENT

4
5
6

16.

in Santa Clara County and should be assigned to the San Jose Division.
VENUE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Pursuant to Civil Local Rules 3-5(b) and 3-2(c) and (e), this action arose

17.

Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391

because Defendants transact business in this district, are subject to personal
jurisdiction in this district, and are therefore deemed to be citizens of this district.
Additionally, Defendants have advertised in this district and have received substantial
revenue and profits from their sales of Class Phones in this district; therefore, a
substantial part of the events and/or omissions giving rise to the claims occurred, in
part, within this district. Specifically, Defendant Google principally operates and has
corporate headquarters located within this district.
18.

This Court has personal jurisdiction over Defendants because they have

conducted substantial business in this judicial district and intentionally and
purposefully placed the Class Phones into the stream of commerce within this district
and throughout the United States.
PARTIES
A.

California Plaintiff

Plaintiff Jonathan Makcharoenwoodhi
19.

Plaintiff Jonathan Makcharoenwoodhi (“Plaintiff Makcharoenwoodhi”) is

an adult individual residing in Monterey Park, Los Angeles County, California.
20.

In or about April 2016, Plaintiff purchased his Class Phone from Best

Buy. The Phone began experiencing problems in or around late February or early
March 2017.

28
Complaint, Case No. 5:17-cv-2185

6

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 7 of 65

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

21.

At first his phone would start shutting off at 25%. The Phone would be at

around 25% battery life, and it would go to 0% instantaneously and shut off. Over the
coming months, this issue became worse. Plaintiff would charge the Phone fully, but
the Phone would begin turning off at 80-85%. If he connected the Phone to a charger
and fully charged the Phone, it would turn back on and the battery would operate for
approximately 10 minutes or so off the charger before the battery would run out and
the Phone would turn off again.
22.

Plaintiff Makcharoenwoodhi tried numerous troubleshooting methods,

including a factory reset, but none of these methods worked to resolve the issue in his
Phone.
23.

Plaintiff contacted Huawei and attempted to go through the warranty

process, but Huawei informed Plaintiff that his warranty was voided due to a minor
cosmetic issue, i.e. a small dent by the volume button. This small dent had no effect on
the operability of the Phone whatsoever.
24.

Huawei instructed Plaintiff that he should seek a repair from a third party

repair shop, but he ended up just buying a new phone.
25.

Plaintiff became stuck with a Phone that was unreliable and achieved

only a portion of the battery life that he thought it would when he purchased the
device, to the point that he had to simply go out and buy a brand new phone.
26.

Plaintiff has suffered an ascertainable loss as a result of Defendants’

omissions and/or misrepresentations associated with the Defect, including, but not
limited to, loss of use, out-of-pocket losses, future repairs, and diminished value of his
Class Phone.
27.

Plaintiff Makcharoenwoodhi would not have purchased his Class Phone

had he known that it contained the Defect and the issues discussed herein.

27
28
Complaint, Case No. 5:17-cv-2185

7

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 8 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

B.

Florida Plaintiff

Plaintiff Colton Winfield
28.

Plaintiff Colton Winfield (“Plaintiff Winfield”) is an adult individual

residing in Tampa, Hillsborough County, Florida. On October 30, 2015, he purchased
a Google Nexus 6P smartphone on from the online Google Store. Plaintiff Winfield
paid $533.93 for his Phone (serial number 510KPNY0013975).
29.

Approximately 11 months later, near the end of the warranty on his

Phone, Plaintiff’s Phone battery started experiencing problems. Any processor-heavy
task would shut down the Phone. Furthermore, any time the battery percentage fell
below 20%, the Phone immediately dropped to 0% battery and would turn off. The
only way to restore functionality in the Phone is to plug the Phone into A/C power.
Once the Phone turns back on, the battery charge is right around the level where it was
prior to shutting off, i.e. 20%.
30.

The below image of battery diagnostics on Plaintiff’s Phone provides an

example of sharp drop-offs in battery performance and battery failure:

17
18
19
20
21
22
23
24
25
26
27
28
Complaint, Case No. 5:17-cv-2185

8

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 9 of 65

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

31.

On occasion, Plaintiff will experience battery drain and early shut-off

with battery levels as high as 25-28%.
32.

Plaintiff submitted a claim under the warranty as the end of his warranty

period was nearing. Plaintiff was provided with a replacement device that had
significant physical damage, namely screen defects. The color gradient was off, and
parts of the screen were green, bright yellow, and red. Plaintiff shipped this phone
back and was sent a second replacement device. This phone, too, had damage – the
power button was bent and the bottom speaker did not work properly. Plaintiff again
requested a (third) replacement device, and upon receipt, this phone had more physical
damage than any of the prior replacement phones.
33.

Each time that Plaintiff sought a replacement phone, Google required a

hold on his checking account of $533, essentially depriving Plaintiff of the use of those
funds until the previous phone was returned to Google. Plaintiff ultimately returned his
third replacement phone and is now using his original Phone, which remains plagued
by the Defect.
34.

Because of the Defect, Plaintiff has – on multiple occasions – become

lost while driving due to inability to access the Phone’s navigation features, and has
not been able to locate fueling stations for his car when his tank is nearing empty.
35.

Plaintiff’s Phone is now out of warranty and he is stuck with a Phone

that is unreliable and achieves only a portion of the battery life that he thought it would
when he purchased the device.
36.

Plaintiff has suffered an ascertainable loss as a result of Defendants’

omissions and/or misrepresentations associated with the Defect, including, but not
limited to, loss of use, loss of intellectual property, out-of-pocket losses, future repairs,
and diminished value of his Class Phone.
37.

Plaintiff Winfield would not have purchased his Class Phone had he

known that it contained the Defect.
Complaint, Case No. 5:17-cv-2185

9

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 10 of 65

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

C.

Indiana Plaintiff

Plaintiff Edward Beheler
38.

Plaintiff Edward Beheler is an adult individual residing in Lafayette,

Tippecanoe County, Indiana. On July 12, 2016, he purchased a Google Nexus 6P
smartphone from Amazon (IMEI number 867979022017799). Plaintiff Beheler paid
$509.99 for his Phone. He also bought a Huawei smartwatch for $299.95 in the same
transaction. As part of Amazon’s “Prime Day” promotion, he received a $230.20
discount on the transaction total.
39.

One of the primary factors in Plaintiff Beheler’s decision to purchase his

Nexus 6P primarily was the long battery life it was advertised as having, as well as the
large screen. In the months immediately after his purchase, his Nexus 6P’s battery
operated satisfactorily and generally held a charge from morning until evening.
40.

In or around March 2017, Plaintiff Beheler began to experience sudden

and severe drain of his Nexus 6P’s battery. He began to notice that the battery life of his
Nexus 6P was very short and that the Phone started running out of battery and powering
off shortly after removing the Phone from a charger, often powering off when the
battery had as much as 70% of its charge remaining and sometimes even as much as
90%. Plaintiff has observed his Phone go from a fully charged battery immediately after
removing it from a charger to powering off due to battery drain in under an hour while
the Phone is in safe mode and he was using only Google’s Chrome browser.
41.

The following screenshot, taken on Plaintiff Beheler’s Phone in or about

March/April 2017, demonstrate the sudden shut off, even where the Phone retains
much of its charge, and then the restoration of battery charge to where it was prior to
the shut off once the battery is put on A/C power:

26
27
28
Complaint, Case No. 5:17-cv-2185

10

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 11 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13

42.

On April 3, 2017, Plaintiff Beheler took a business trip to a factory in

14

Kansas. During that trip, Plaintiff Beheler was unable to charge his Nexus 6P

15

frequently and experienced several battery drains and shut offs in a short period. On

16

April 5, 2017, Plaintiff Beheler had dinner with colleagues and then a tour of an antique

17

shop. Prior to dinner, Plaintiff Beheler’s Phone was fully charged. However, midway

18

through the tour of the antique shop, the battery suddenly drained and the Phone shut

19

off. On April 7, 2017, the Phone again died several times in a few hour period while he

20

waited to travel home at the Minneapolis airport. Plaintiff Beheler was only able to get

21

the Phone charged and running again by plugging it into an external battery pack.

22

43.

Following Plaintiff’s business trip, he contacted Google’s customer

23

support using their callback feature. The Google representative walked him through

24

some troubleshooting steps, and determined that the Phone was defective and needed

25

replaced due to a hardware defect. However, because he purchased the Phone from

26

Amazon rather than from Google, Google would not provide any assistance and

27
28
Complaint, Case No. 5:17-cv-2185

11

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 12 of 65

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

declined to provide Plaintiff Beheler any relief. The Google representative direct him
to contact Huawei’s customer support.
44.

Thereafter, on or around April 11, 2017, Plaintiff Beheler called Huawei’s

customer support. The Huawei representative Plaintiff spoke to agreed that the Phone
was defective, and told him that he could send the Phone in to be repaired or replaced,
leaving Plaintiff Beheler without his Nexus 6P for seven to ten days at minimum. The
representative informed Plaintiff Beheler Huawei does not perform advance
replacements. Huawei requested Plaintiff Beheler send Huawei photos of his Phone,
which he did. The Huawei representative initiated a ticket number but did not create a
mailing label or issue a Return Merchandise Authorization.
45.

Through online research, Plaintiff Beheler found that consumers were

reporting that Huawei's repair department was completely overwhelmed by warranty
claims and other repairs related to the Defect, with some consumers reporting that they
had been without a phone for up to four weeks, with no return date in sight. Due to
personal circumstances, such as work and family obligations, Plaintiff Beheler is unable
to be without a cell phone or other means of contact for such an extended period of
time.
46.

Plaintiff contacted Huawei support by phone again, and the representative

he spoke to confirmed that Huawei was then unable to estimate repair times. Plaintiff
requested that his call be escalated. The representative told Plaintiff he would escalate
the call and that Plaintiff would be called back shortly. Huawei did not call Plaintiff
back following that conversation.
47.

Plaintiff Beheler also contacted Amazon to see if it would accept a return,

but it would not, as nine months has passed since the date of purchase.
48.

Plaintiff contacted Google customer support several more times regarding

his Phone’s severe battery drain. He was repeatedly told that Google would not
provide any form of service or support for a Nexus 6P that was not purchased directly
Complaint, Case No. 5:17-cv-2185

12

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 13 of 65

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

through the Google Play store and that Plaintiff’s concerns should be directed to
Huawei.
49.

Plaintiff Beheler has suffered an ascertainable loss as a result of

Defendants’ omissions and/or misrepresentations associated with the Defect,
including, but not limited to, loss of use, out-of-pocket losses, future repairs, and
diminished value of his Class Phone.
50.

Plaintiff Beheler would not have purchased his Class Phone had he

known that it contained the Defect.
D.

Defendants
51.

Defendant Huawei Device USA, Inc. is, upon information and belief, a

corporation organized and existing under the laws of the state of Texas, with its
principal place of business located at 5700 Tennyson Parkway, Suite 500 Plano, Collin
County, Texas 75024.
52.

Defendant Google, Inc. is, upon information and belief, a corporation

organized and existing under the laws of the state of Delaware, with its principal place
of business located at 1600 Ampitheatre Parkway, Mountain View, Santa Clara County,
California 94043.
53.

Defendants, and each of them, are now, and/or at all times mentioned in

this complaint were in some manner legally responsible for the events, happenings and
circumstances alleged in this complaint. Defendants proximately caused Plaintiffs, all
others similarly situated to be subjected to the unlawful practices, wrongs, complaints,
injuries, and/or damages alleged in this complaint. Defendants, and each of them, are
now, and/or at all times mentioned in this complaint were the agents, servants, and/or
employees of some or all other Defendants, and vice-versa, and in doing the things
alleged in this complaint, Defendants are now and/or at all times mentioned in this
complaint were acting within the course and scope of that agency, servitude, and/or
employment.
Complaint, Case No. 5:17-cv-2185

13

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 14 of 65

1
2
3
4
5
6
7
8
9
10
11

54.

concurred and contributed to the various acts and omissions of each and every one of
the other Defendants in proximately causing the complaints, injuries, and/or damages
alleged in this complaint. Defendants, and each of them, at all times mentioned in this
complaint approved of, condoned and/or otherwise ratified each and every one of the
acts and/or omissions alleged in this complaint.
55.

14
15

thereby proximately causing the damages alleged in this complaint.
FACTUAL ALLEGATIONS
A.

18

The Google Nexus 6P
56.

On a stage in San Francisco on the morning of September 29, 2015,

Google unveiled the newest version of its Nexus 6 smartphone, called the Nexus 6P. In
conjunction with its release, Google touted the Nexus 6P as its “most premium phone
yet.”3

16
17

Defendants, and each of them, at all times mentioned in this complaint

aided and abetted the acts and omissions of each and every one of the other Defendants

12
13

Defendants, and each of them, at all times mentioned in this complaint

57.

The Nexus 6P was released for pre-order on September 29, 2015 through

the Google Store in the United States, United Kingdom, Ireland, and Japan, with release
in additional countries in the weeks that followed.4 Images of the Nexus 6P are below:

19
20
21
22
23
24
25
26
27
28

3

http://www.theverge.com/2015/9/29/9410551/google-nexus-6p-announced-size-pricerelease-date (last visited April 14, 2017).
4
http://www.androidpolice.com/2015/09/28/exclusive-nexus-6p-will-be-available-forpre-order-on-september-29th-starting-499-99-in-the-u-s-uk-ireland-canada-and-japan/
(last visited April 14, 2017).
Complaint, Case No. 5:17-cv-2185

14

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 15 of 65

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

58.

The Nexus 6P is equipped with a 5.7-inch WQHD display and a

completely new design, at 7.3mm thick.5 The Nexus 6P is also equipped with a
3450mAh battery, dual front-facing speakers, and the Snapdragon 810 v2.1 processor.6
An 8-megapixel camera is on the front of the Nexus 6P. The camera is supposed to be
5

http://www.theverge.com/2015/9/29/9410551/google-nexus-6p-announced-size-pricerelease-date (last visited April 14, 2017).
6
http://www.androidpolice.com/2015/09/28/exclusive-nexus-6p-will-be-available-forpre-order-on-september-29th-starting-499-99-in-the-u-s-uk-ireland-canada-and-japan/
(last visited April 14, 2017).
Complaint, Case No. 5:17-cv-2185

15

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 16 of 65

1
2
3
4
5
6
7
8
9
10
11

optimized for indoor photography and features slow-motion video, 4K video, and burst
mode for photos.7
59.

GB).8 Furthermore, the Nexus 6P was marketed as “unlocked” such that consumers are
not tied to a contract and can use the Phones with many different carriers.9
60.

fast as the iPhone 6 Plus.10
61.

• “the most advanced Android software built into innovative hardware”;
• “the very latest and best in material design”; and
• capable of “charg[ing] fully in about half the time of an iPhone 6

14

Plus”.11

15

18
19
20

At the launch event, Google’s Vice President of Engineering Dave Burke

touted the Nexus 6P as:

13

17

At the launch event, Google claimed that the Nexus 6P would possess best

in class features, including support for ultra-fast charging allowing it to charge twice as

12

16

The Phones were offered for $499 (32 GB), $549 (64 GB), and $649 (128

62.

At the launch event, Google’s Product Management Director Sabrina Ellis

also described the Nexus Protect package, which she characterized as providing
coverage for those “drops, spills, and cracks we all worry about.” She also stated that
because Nexus Protect support would be offered 24/7, when consumers need to file a
claim, they can “get a new device as early as the next business day.”12

21
22
23
24
25
26
27
28

7

http://www.theverge.com/2015/9/29/9410551/google-nexus-6p-announced-size-pricerelease-date (last visited April 14, 2017).
8
Id., at embedded videos.
9
Id.
10
Id.
11
https://www.youtube.com/watch?v=-THMyqbmiYk (last visited April 14, 2017).
12
http://www.theverge.com/2015/9/29/9410551/google-nexus-6p-announced-sizeprice-release-date (last visited April 14, 2017), at embedded video.
Complaint, Case No. 5:17-cv-2185

16

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 17 of 65

1
2
3
4
5
6
7
8

63.

As recently as April 2017, Google’s website advertises the Nexus 6P as

containing a battery that “keeps you talking, texting, and apping into the night.”13
Neither Google’s nor Huawei’s websites mention the Defect.
64.

Despite Google’s high remarks about the Nexus 6P Phones and their

performance, countless consumers report having quite a different experience in terms of
quality, operability, and battery performance.
B.

The Widespread Defect Becomes Apparent in All of the Class Phones
65.

9

Unbeknownst to consumers, Nexus 6P Phones suffer from the Defect that

10

inevitably causes the Phones to experience severe battery drainage or get stuck on the

11

home screen and in the bootup process. When the Defect manifests as the Bootloop

12

Defect, the Phone will unexpectedly turn off, then upon turning back on, get stuck in

13

the bootup process, and fail to proceed beyond the start-up screen. When this Defect

14

manifests as the Battery Drain Defect, the Phone will experience severely diminished

15

battery life and premature shut-off.
66.

16

When bootlooping occurs, the phone is essentially a very expensive

17

paperweight. After the Defect occurs, the Phone no longer operates whatsoever. It

18

cannot be used to make calls, send text messages, access the internet, or use any other

19

function available on the Phone. Consumers lose all access to any data or information

20

stored on the Phone, including any photographs or other intellectual property.
67.

21
22

Consumer complaints regarding bootlooping in the Nexus 6P began

appearing online at least as early as September 2016.
68.

23

Manifestation of the Defect as the Battery Drain Defect is also a

24

widespread issue in Class Phones. When this issue manifests, consumers experience a

25

complete loss of operability in their Class Phones despite that the battery on their

26

Phones show a partial charge. Consumers report the same common experience: the

27
28

13

https://www.google.com/nexus/6p/ (last visited April 14, 2017).

Complaint, Case No. 5:17-cv-2185

17

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 18 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Phone will be working fine, and the battery will have a partial charge (e.g. between 1545%) when suddenly, their Phone will just turn off and will not turn back on. Some
consumers report that this occurs with as high as 80% battery life remaining.
69.

When this happens, consumers are only able to get the Phone to start

operating again by plugging the Phone into a charger. Eventually, the Phone turns
back on and the battery life shows that the Phone has been charged slightly above the
point or percentage where it was before the Phone failed and died due to the Defect.
70.

Despite Defendants’ awareness of the Defect and countless reports of

these issues from consumers – including directly to Huawei and Google, on
Defendants’ message boards, and on consumer websites – Defendants continue to sell
Class Phones without informing consumers of the Defect.
71.

Defendants have refused to confirm the presence of these issues in Class

Phones and provide relief to consumers whose Nexus 6P Phones bootloop or suffer
from battery drain or early shut-off.
C.

The Impact of the Battery Drain and Bootloop on Consumers
72.

As discussed above, Plaintiffs have experienced the Defect in his Class

Phone. His experience is by no means an isolated occurrence.
73.

The internet is replete with complaints by consumers who purchased a

Nexus 6P phone, only to experience the same bootloop and battery drain problems.
Examples of some of these complaints are below:

22
23
24
25
26

https://www.reddit.com/r/Nexus/comments/4zhx53/never_ending_boot_loop_with_and
roid_7_nougat/de0d4k3/ (last visited March 3, 2017)

27
28
Complaint, Case No. 5:17-cv-2185

18

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 19 of 65

1
2
3
4
5
6
7
8

https://www.reddit.com/r/Nexus/comments/4zhx53/never_ending_boot_loop_with_and
roid_7_nougat/dd9lj2q/ (last visited March 3, 2017)

9
10
11
12
13
14
15
16
17
18

https://www.youtube.com/watch?v=9iqpfUqb8gU (last visited March 3, 2017)

19
20
21
22

Id. (last visited March 3, 2017)

23
24
25

Id. (last visited March 3, 2017)

26
27
28
Complaint, Case No. 5:17-cv-2185

19

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 20 of 65

1
2
3
4
5
6
7

http://www.androidauthority.com/nexus-6p-bootloop-issues-738275/ (last visited
March 3, 2017)

8
9
10
11
12
13
14

Id. (last visited March 3, 2017)

15
16
17
18
19
20
21

Id. (last visited March 3, 2017)

22
23
24
25
26
27
28

https://www.xda-developers.com/nexus-6p-users-experiencing-random-bootloops/ (last
visited March 3, 2017)
Complaint, Case No. 5:17-cv-2185

20

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 21 of 65

1
2
3
4
5
6
7

http://www.androidauthority.com/amazon-alexa-based-voice-call-754631/#comment2910821891 (last visited March 3, 2017)

8
9
10
11
12
13
14
15

http://www.androidauthority.com/samsung-lg-lcd-delay-764136/#comment2994769785 (last visited April 14,2017)

16
17
18
19
20

http://www.androidauthority.com/samsung-lg-lcd-delay-764136/#comment3065853865 ( last visited April 14, 2017)

21
22
23

http://www.androidauthority.com/samsung-lg-lcd-delay-764136/#comment2978851185 (last visited April 14,2017)

24
25
26
27
28

http://www.androidauthority.com/samsung-lg-lcd-delay-764136/#comment2978082660 (last visited April 14, 2017)
Complaint, Case No. 5:17-cv-2185

21

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 22 of 65

1
2
3
4
5
6
7
8
9
10
11

https://twitter.com/psychicstorm/status/852146771354628096 (last visited April a14,
2017)

12
13
14
15
16
17
18
19

https://twitter.com/sdfitnoexcuses/status/851661079914532864 (last visited April 14,
2017)

20
21
22
23
24
25
26
27
28
Complaint, Case No. 5:17-cv-2185

22

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 23 of 65

1
2

https://twitter.com/chukumukoo/status/850744112190038017 (last visited April 14,
2017)

3
4
5
6
7
8

https://twitter.com/AnnandKevin/status/847110772941606912
14,2017)

(last

visited

April

9
10
11
12
13
14

https://www.facebook.com/androidauthority/posts/1137761776273542?comment_id=
1137787889604264&comment_tracking=%7B%22tn%22%3A%22R0%22%7D (last
visited April 14, 2017)

15
16
17
18
19
20
21
22
23
24

https://www.amazon.com/gp/customerreviews/R15DQL12OO5EVM/ref=cm_cr_getr_d_rvw_ttl?ie=UTF8&ASIN=B015YC
RYZM (last visited April 14,2017)

25
26
27
28
Complaint, Case No. 5:17-cv-2185

23

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 24 of 65

1
2
3
4
5
6
7
8
9

https://www.amazon.com/gp/customerreviews/R121YD5FSNCG3Z/ref=cm_cr_getr_d_rvw_ttl?ie=UTF8&ASIN=B015YCR
YZM (last visited April 14,2017)
74.

10

Consumers have even initiated a petition on change.org to get

11

Defendants to address the Defect in the 6P.14 As of April 14, 2017, the petition had

12

garnered signatures from 125 supporters.

13

D.

Defendants’ Continued Failure to Remedy the Defect
75.

14

Despite the fact that Defendants know of or are on notice of the issues in

15

Class Phones described herein, Defendants have failed to disclose these issues to

16

consumers prior to purchase, and once the issues manifest in the Class Phones,

17

Defendants fail to provide an adequate remedy.
76.

18

Defendants often fail to provide a remedy or relief for consumers even in

19

warranty, often pointing to a cosmetic issue (such as a cracked screen) as an excuse

20

not to provide a repair or replacement. Often times the problems in Nexus 6P Phones

21

occur just outside of the warranty.
77.

22

Consumers report that they have been required to obtain a repair or

23

replacement at their own expense and that Defendants are not standing behind their

24

product or their promises to repair Class Phones. Many consumers have already paid

25
26
27
28

14

See https://www.change.org/p/google-inc-get-repair-replacement-support-fromgoogle-and-huawei-for-the-nexus-6p?source_location=topic_page (last visited April
14, 2017).
Complaint, Case No. 5:17-cv-2185

24

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 25 of 65

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

out of pocket for the costly repairs associated with fixing the battery drain and
bootloop problems in Class Phones.
78.

Although Google and Huawei appear to offer some consumers repairs or

refurbished devices at no cost, this is not the norm, and Defendants have refused to
acknowledge these issues and provide the same relief, or any relief at all, for other
consumers.
79.

On calls to customer support, consumers typically experience Google and

Huawei representatives pointing fingers at one another and bouncing consumers back
and forth to each other on series of calls. These calls often end in no recourse.
80.

Other consumers are forced to either pay a repair price or submit a

damage claim through Assurant, which requires payment of a costly deductible.
81.

Consumers who are able to obtain a replacement device – whether free of

charge or (more likely) after paying out of pocket – are routinely provided with
refurbished, used phones. This leaves consumers in a situation where they have paid
full-freight for a brand new phone, but are left with a refurbished phone that will likely
(and often does) experience the same issues again, and in some cases multiple
additional times. Many consumers, like Plaintiff Poore, report receiving refurbished
devices containing cosmetic or other physical damage, and have had to seek multiple
refurbished devices.
82.

Defendants should not be permitted to continue concealing the Defect

while fleecing consumers with the costs of repairing Class Phones and making
consumers overpay for defective Class Phones when Defendants are well aware of
these issues.
83.

It is apparent that Defendants know of these issues but have no intention

of universally remedying these problems, as Defendants routinely decline to repair
defective Phones that are clearly affected by the issues described herein under the
guise of cosmetic or other reasons.
Complaint, Case No. 5:17-cv-2185

25

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 26 of 65

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

84.

To date, Defendants have failed to acknowledge that Nexus 6P Phones are

plagued by defects resulting in battery drainage/early shut-off and bootlooping, and
Defendants continue to fail to repair the defective Phones free of charge to consumers.
Even as consumer reports begin to rapidly emerge online about these problems,
Defendants have not acknowledged these widespread problems.
85.

Had these issues been known and disclosed to Plaintiffs and consumers,

they would not have purchased their Class Phones (or at a minimum would have paid
significantly less for them). At the time of purchase, Plaintiffs were not aware of the
issues in the Class Phones.
86.

Defendants have made affirmative representations about the quality of the

Class Phones and failed to disclose, or suppressed, a material fact about the Class
Phones, namely that they are plagued by a defect that results in battery drain or
bootlooping that inevitably renders Class Phones completely useless.
87.

Defendants had a duty to disclose these issues based upon its exclusive

knowledge thereof – a material fact that, had it been disclosed to consumers (including
Plaintiffs), would have resulted in consumers not purchasing their Class Phones.
88.

Defendants have and had exclusive knowledge of the defect in the Class

Phones.
89.

As a result of the Defect and Defendants’ refusal to adequately address

and remedy these issues, consumers across the United States have paid and continue to
pay large sums of money out of pocket to repair the Defect in Class Phones or to
obtain a replacement, including money paid for repairs, insurance deductibles paid in
conjunction with insurance claims, and other out of pocket costs.
90.

In addition, the Defect has caused countless consumers to experience loss

of use of their Class Phones, loss in value of their Class Phones, and loss of access to
photos and other valuable intellectual property accessible only through their Class
Phones, which can no longer be accessed due to Class Phones being bricked.
Complaint, Case No. 5:17-cv-2185

26

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 27 of 65

1
2
3
4
5
6
7
8
9
10

91.

Under these circumstances – Defendants’ superior bargaining power,

exclusive knowledge of the Defect, and failure to disclose the same – any attempt to
limit the warranty period to a period of one year or other limitations on the rights of
consumers to vindicate these claims are unenforceable as procedurally and
substantively unconscionable.
CLASS ACTION ALLEGATIONS
92.

Plaintiffs bring this lawsuit on behalf of themselves and all similarly

situated individuals and entities, pursuant to Federal Rule of Civil Procedure 23(a),
23(b)(2) and 23(b)(3). Specifically, the classes consist of:
Nationwide Class

11
12

All persons or entities who purchased a defective Nexus 6P
Phone.

13

California Subclass

14

All persons or entities in the state of California who
purchased a defective Nexus 6P Phone.

15

Florida Subclass

16
17

All persons or entities in the state of Florida who purchased a
defective Nexus 6P Phone.

18

Indiana Subclass

19

All persons or entities in the state of Indiana who purchased a
defective Nexus 6P Phone.

20
21

93.

Excluded from the Classes are Defendants, its affiliates, subsidiaries,

22

parents, successors, predecessors, any entity in which Defendants or their parents have

23

a controlling interest; Defendants’ current and former employees, officers and

24

directors; the Judge(s) and/or Magistrate(s) assigned to this case; any person who

25

properly obtains exclusion from the Classes; any person whose claims have been

26

finally adjudicated on the merits or otherwise released; and the parties’ counsel in this

27

litigation. Plaintiffs reserve the right to modify, change, or expand the Classes

28

definitions based upon discovery and further investigation.
Complaint, Case No. 5:17-cv-2185

27

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 28 of 65

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

94.

Numerosity: Upon information and belief, the Class is so numerous that

joinder of all members is impracticable. While the exact number and identities of
individual members of the Class are unknown at this time, such information being in
the sole possession of Defendants and/or third parties and obtainable by Plaintiffs only
through the discovery process, Plaintiffs believe, and on that basis allege, that
thousands upon thousands of Class members have been subjected to the conduct by
Defendants herein alleged. Plaintiffs’ counsel has been contacted by nearly two
thousand consumers who claim to have experienced one or both of the Defects.
95.

Existence and Predominance of Common Questions of Fact and

Law: Common questions of law and fact exist as to all members of the Class. These
questions predominate over the questions affecting individual Class members. These
common legal and factual questions include, but are not limited to:
a)

Whether the Phones are defective in that they were prone to failing
prematurely due to the Defect;

b)

Whether Defendants knew of the Defect but failed to disclose the
problem and its consequences to their customers;

c)

Whether a reasonable consumer would consider the Defect or its
consequences to be material;

d)

Whether Defendants’ conduct violates state consumer protection laws
and other laws as asserted herein;

e)

Whether Plaintiffs and the other Class members overpaid for their
Phones as a result of the Defect alleged herein;

f)

Whether Defendants’ conduct was fraudulent;

g)

Whether Plaintiffs and the other Class members are entitled to equitable
relief, including, but not limited to, restitution or injunctive relief; and

h)

Whether Plaintiffs and the other Class members are entitled to damages
and other monetary relief and, if so, in what amount.

Complaint, Case No. 5:17-cv-2185

28

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 29 of 65

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

96.

Typicality: All of Plaintiffs’ claims are typical of the claims of the Class

since Plaintiffs and all Class members were injured in the same manner by
Defendants’ uniform course of conduct described herein. Plaintiffs and all Class
members have the same claims against Defendants relating to the conduct alleged
herein, and the same events giving rise to Plaintiffs claims for relief are identical to
those giving rise to the claims of all Class members. Plaintiffs and all Class members
sustained monetary and economic injuries including, but not limited to, ascertainable
losses arising out of Defendants’ wrongful conduct as described herein. Plaintiffs are
advancing the same claims and legal theories on behalf of themselves and all absent
Class members.
97.

Adequacy: Plaintiffs are adequate representative for the Class because

his interests do not conflict with the interests of the Class that they seek to represent;
Plaintiffs have retained counsel competent and highly experienced in complex class
action litigation – including consumer fraud class action cases – and counsel intends to
prosecute this action vigorously. The interests of the Class will be fairly and
adequately protected by Plaintiffs and their counsel.
98.

Superiority: A class action is superior to all other available means of

fair and efficient adjudication of the claims of Plaintiffs and all Class members. The
injury suffered by each individual Class member is relatively small in comparison to
the burden and expense of individual prosecution of the complex and extensive
litigation necessitated by Defendants’ conduct. It would be virtually impossible for
members of the Class individually to redress effectively the wrongs done to them by
Defendants. Even if Class members could afford such individual litigation, the court
system could not. Individualized litigation presents a potential for inconsistent or
contradictory judgments. Individualized litigation increases the delay and expense to
all parties, and to the court system, presented by the complex legal and factual issues
of the case. By contrast, the class action device presents far fewer management
Complaint, Case No. 5:17-cv-2185

29

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 30 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

difficulties, and provides the benefits of single adjudication, an economy of scale, and
comprehensive supervision by a single court. Upon information and belief, members
of the Class can be readily identified and notified based on, inter alia, the records
(including databases, e-mails, etc.) Defendants maintain regarding sales of Class
Phones. Plaintiffs know of no difficulty to be encountered in the management of this
action that would preclude its maintenance as a class action.
99.

Defendants have acted or refused to act on grounds generally applicable

to Plaintiffs and the other members of the Class, thereby making appropriate final
injunctive relief and declaratory relief, as described below, with respect to the Class as
a whole.
100.

Given that Defendants have engaged in a common course of conduct as

to Plaintiffs and the Class, similar or identical injuries and common law and statutory
violations are involved and common questions far outweigh any potential individual
questions.
CAUSES OF ACTION

16
17

A.

Nationwide Class
COUNT I
BREACH OF EXPRESS WARRANTY
(Against Huawei)
(On Behalf of the Nationwide Class)

18
19
20
21
22
23
24
25
26
27
28

101. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
102. Plaintiffs bring this claim on behalf of the Nationwide Class.
103.

Huawei is a “merchant” as defined under the Uniform Commercial Code

(“UCC”).
104.

The Class Phones are “goods” as defined under the UCC.

105.

Huawei expressly warranted that the Class Phones were of free from

material defects and, at a minimum, would actually work properly. Huwaei also
Complaint, Case No. 5:17-cv-2185

30

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 31 of 65

1
2
3

expressly warranted that they would repair and/or replace “any parts of the [Phone] that
are defective or malfunctioning during normal usage.”15
106.

4

For example, Huawei’s warranty for each Class Phone provides:
Huawei Device USA Inc., (“Huawei”) represents and
warrants to the original purchaser (“Purchaser”) that Huawei’s
phones and accessories (“Product”) are free from material
defects, including improper or inferior workmanship,
materials, and design, during the designated warranty
period[.]16

5
6
7
8
9
107.

10

Huawei breached its warranty by selling to Plaintiffs and class members

11

Class Phones equipped with the Defect, which is material, causing Class Phones to fail

12

to function properly or at all.
108.

13

Huawei further breached the warranty by failing to repair and/or replace

14

Plaintiffs’ and other Class members’ Phones when they failed during the warranty

15

period.
109.

16

This intended failure to disclose the known Defect is malicious, and it

17

was carried out with willful and wanton disregard for the rights and economic interests

18

of Plaintiffs and Class members.
110.

19

As a result of Huawei’s actions, Plaintiffs and Class members have

20

suffered economic damages including but not limited to costly repairs, loss of use,

21

substantial loss in value and resale value of the Phones, and other related damage.
111.

22

Huawei’s attempt to disclaim or limit its express warranties vis à-vis

23

consumers is unconscionable and unenforceable under the circumstances here.

24

Specifically, Huawei’s warranty limitation is unenforceable because it knowingly sold a

25

defective product without informing consumers about the Defect.

26
27
28

15

http://consumer.huawei.com/us/support/warranty-policy/mobile-phone/index.htm
(last visited April 14, 2017).
16
Id.
Complaint, Case No. 5:17-cv-2185

31

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 32 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

112.

Furthermore, the time limits contained in Huawei’s warranty period are

also unconscionable and inadequate to protect Plaintiffs and members of the Class.
Among other things, Plaintiffs and Class members have had no meaningful choice in
determining these time limitations, the terms of which unreasonably favored Huawei. A
gross disparity in bargaining power existed between Huawei and class members, and
Huawei knew or should have known that the Class Phones were defective at the time of
sale, and would fail well before their useful lives. Furthermore, consumers had no way
of knowing of the concealed Defect.
113.

Plaintiffs and Class members have complied with all obligations under

the warranty, or otherwise have been excused from performance of said obligations as a
result of Huawei’s conduct described herein.
114.

Huawei was provided notice of these issues by complaints lodged by

consumers before or within a reasonable amount of time after the allegations of the
Defect became public.

18

COUNT II
BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
(Against Defendants)
(On Behalf of the Nationwide Class)

19

115. Plaintiffs repeat and reallege the allegations above as if fully set forth

17

20

herein.

21

116.

Plaintiffs bring this claim on behalf of the Nationwide Class.

22

117.

Huawei and Google are “merchants” as defined under the UCC.

23

118.

The Class Phones are “goods” as defined under the UCC.

24

119.

Huawei and Google impliedly warranted that the Class Phones were of a

25
26
27

merchantable quality.
120.

Defendants breached the implied warranty of merchantability because

the Class Phones were not of a merchantable quality due to the Defect.

28
Complaint, Case No. 5:17-cv-2185

32

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 33 of 65

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

121.

Plaintiffs and Class members’ interactions with Huawei and Google

suffice to create privity of contract between Plaintiffs and Class members, on the one
hand, and Defendants, on the other hand; however, privity of contract need not be
established nor is it required because Plaintiffs and Class members are intended thirdparty beneficiaries of contracts between Huawei and Google and the retailers who sell
the Phones, and specifically, of Defendants’ implied warranties. Defendants’ warranties
were designed for the benefit of consumers who purchase(d) Class Phones.
122.

As a direct and proximate result of the breach of said warranties,

Plaintiffs and Class members were injured and are entitled to damages.
123.

Defendants’ attempts to disclaim or limit the implied warranty of

merchantability vis-à-vis consumers is unconscionable and unenforceable here.
Specifically, Defendants’ warranty limitations are unenforceable because Defendants’
knowingly sold a defective product without informing consumers about the Defect.
124.

Furthermore, the time limits contained in Defendants’ warranty period

were also unconscionable and inadequate to protect Plaintiffs and members of the
Class. Among other things, Plaintiffs and members of the Class had no meaningful
choice in determining these time limitations, the terms of which unreasonably favored
Defendants. A gross disparity in bargaining power existed between Defendants and
Class members, and Defendants knew or should have known that the Class Phones
were defective at the time of sale and that the Phones would fail well before their
useful lives.
125.

Plaintiffs and Class members have complied with all obligations under

the warranty or otherwise have been excused from performance of said obligations as a
result of Defendants’ conduct described herein.
126.

Defendants were provided notice of these issues by complaints lodged by

consumers before or within a reasonable amount of time after the allegations of the
Defect became public.
Complaint, Case No. 5:17-cv-2185

33

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 34 of 65

1
COUNT III
VIOLATION OF THE MAGNUSSON-MOSS
WARRANTY ACT, 15 U.S.C. §§ 2301 et seq. (“MMWA”)
(Against Huawei)
(On Behalf of the Nationwide Class)

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

127. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
128.

Plaintiffs and Class members are “consumers” within the meaning of the

MMWA. 15 U.S.C. § 2301(3).
129.

The Phones are “consumer products” within the meaning of the MMWA.

15 U.S.C. § 2301(1).
130.

Huawei is a “supplier” and “warrantor” within the meaning of the

MMWA. 15 U.S.C. § 2301(4)-(5).
131.

Section 2310(d) of the MMWA provides a cause of action for consumers

who are harmed by the failure of a warrantor to comply with a written or implied
warranty.
132.

Huawei’s express warranties are written warranties within the meaning of

Section 2301(6) of the MMWA. The Phones’ implied warranties are accounted for
under Section 2301(7) of the MMWA, which warranties Huawei cannot disclaim under
the MMWA, when they fail to provide merchantable goods.
133.

As set forth herein, Huawei breached their warranties with Plaintiffs and

Class members.
134.

Additionally, 15 U.S.C. § 2304(d) provides in pertinent part:
[T]he warrantor may not assess the consumer for any costs the
warrantor or his representatives incur in connection with the
required remedy of a warranted consumer product. . . . [I]f any
incidental expenses are incurred because the remedy is not
made within a reasonable time or because the warrantor
imposed an unreasonable duty upon the consumer as a
condition of securing remedy, then the consumer shall be

Complaint, Case No. 5:17-cv-2185

34

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 35 of 65

1
2
3

entitled to recover reasonable incidental expenses which are so
incurred in any action against the warrantor.
Id.

4

135.

The Nexus 6P phones share a common defect in that they are equipped

5

with the Defect.

6

136.

Despite demands by Plaintiffs and the Class for Huawei to pay the

7

expenses associated with diagnosing and repairing the defective phones, Huawei has

8

refused to do so.

9

137.

As a direct and proximate result of Huawei’s breach of implied and

10

express warranties pursuant to 15 U.S.C. § 2310(d)(1), Plaintiffs and Class members

11

have suffered damages in an amount to be proven at trial.

12

138.

Plaintiffs and the other Class members would suffer economic hardship if

13

they returned their Phones but did not receive the return of all payments made by them.

14

Because Huawei is refusing to acknowledge any revocation of acceptance and return

15

immediately any payments made, Plaintiffs and the other Class members have not re-

16

accepted their Phones by retaining them.

17

139.

The amount in controversy of Plaintiffs’ individual claims meets or

18

exceeds the sum of $25. The amount in controversy of this action exceeds the sum of

19

$50,000, exclusive of interest and costs, computed on the basis of all claims to be

20

determined in this lawsuit.

21
22
23
24

140.

Plaintiffs and Class members are entitled to recover damages as a result

of Defendants’ breach of warranties.
141.

Plaintiffs and Class members are also entitled to seek costs and expenses,

including attorneys’ fees, under the MMWA. 15 U.S.C. § 2310(d)(2).

25
26
27
28
Complaint, Case No. 5:17-cv-2185

35

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 36 of 65

1

B.

California Subclass

2

COUNT IV
BREACH OF EXPRESS WARRANTY
C AL . C OM . C ODE § 2313
(Against Huawei)
(On Behalf of the California Subclass)

3
4
5
6
7

142. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.

8
9

143. This claim is brought by Plaintiff Makcharoenwoodhi on behalf of the
California Subclass.

10
11

144. Huawei is and was at all relevant times a merchant with respect to
smartphones. CAL. COM. CODE § 2104.

12

145. Pursuant to CAL. COM. CODE § 2313:

13

(1) Express warranties by the seller are created as follows:

14

(a) Any affirmation of fact or promise made by the
seller to the buyer which relates to the goods and
becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the
affirmation or promise.

15
16
17
18
19

Id.

20

146. In its warranty and in advertisements, brochures, and through other

21

statements in the media, Huawei expressly warranted that it would repair or replace

22

defects in material or workmanship free of charge if they became apparent during the

23

warranty period. For example, Huwaei also expressly warranted that they would repair

24

and/or replace “any parts of the [Phone] that are defective or malfunctioning during

25

normal usage.”

26

147. Huawei’s warranty, as well as advertisements, brochures, and other

27

statements in the media regarding the Class Phones, formed the basis of the bargain that

28
Complaint, Case No. 5:17-cv-2185

36

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 37 of 65

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

was reached when Plaintiff Makcharoenwoodhi and the other Class members purchased
their Class Phones.
148. Huawei breached the express warranty to repair and adjust to correct
defects in materials and workmanship in the Phones. Huawei has not repaired or
adjusted, and has been unable to repair or adjust, the Defect in Class Phones.
149. At the time of selling Class Phones, Huawei did not provide Class Phones
that conformed to its express warranties.
150. Furthermore, the warranty of repair and/or adjustments to defective parts
fails in its essential purpose because the contractual remedy is insufficient to make
Plaintiff Makcharoenwoodhi and the other Class members whole and because Huawei
has failed and/or has refused to adequately provide the promised remedies within a
reasonable time.
151. Accordingly, recovery by Plaintiff Makcharoenwoodhi and the other Class
members is not limited to the limited warranty of repair or adjustments to parts
defective in materials or workmanship, and Plaintiff, individually and on behalf of the
other Class members, seeks all remedies as allowed by law.
152. Also, as alleged in more detail herein, at the time that Huawei warranted
and sold the Class Phones it knew that the Class Phones did not conform to the
warranties and were inherently defective, and Huawei wrongfully and fraudulently
misrepresented and/or concealed material facts regarding its Class Phones. Plaintiff
Makcharoenwoodhi and the other Class members were therefore induced to purchase
the Class Phones under false and/or fraudulent pretenses.
153. Moreover, many of the injuries flowing from the Class Phones cannot be
resolved through the limited remedy of “replacement or adjustments,” as many
incidental and consequential damages have already been suffered due to Huawei’s
fraudulent conduct as alleged herein, and due to its failure and/or continued failure to
provide such limited remedy within a reasonable time, and any limitation on Plaintiff’s
Complaint, Case No. 5:17-cv-2185

37

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 38 of 65

1
2
3
4
5
6
7
8
9
10

and the other Class members’ remedies would be insufficient to make Plaintiff and the
other Class members whole.
154. Huawei was provided notice of these issues by numerous complaints filed
against it, including the instant complaint, and by numerous individual communications
sent by the other Class members before or within a reasonable amount of time after the
allegations of the Defect became public.
155. As a direct and proximate result of Huawei’s breach of express warranties,
Plaintiff Makcharoenwoodhi and the other Class members have been damaged in an
amount to be determined at trial.

14

COUNT V
VIOLATION OF THE SONG-BEVERLY CONSUMER WARRANTY ACT FOR
BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
(CAL. CIV. CODE §§ 1791.1 & 1792)
(Against Defendants)
(On Behalf of the California Subclass)

15

156. Plaintiffs repeat and reallege the allegations above as if fully set forth

11
12
13

16
17
18

herein.
157. Plaintiff Makcharoenwoodhi brings this Count on behalf of the California
Subclass.

19

158. Plaintiff and the other Class members who purchased Nexus 6P

20

smartphones in California are “buyers” within the meaning of CAL. CIV. CODE

21

§ 1791(b).

22
23
24
25

159. The Nexus 6P smartphones are “consumer goods” within the meaning of
CAL. CIV. CODE § 1791(a).
160. Huawei is a “manufacturer” of the Nexus 6P smartphones within the
meaning of CAL. CIV. CODE § 1791(j).

26

161. Defendants impliedly warranted to Plaintiff and the other Class members

27

that their Nexus 6P smartphones were “merchantable” within the meaning of CAL.

28

CIV. CODE §§ 1791.1(a) & 1792; however, the Nexus 6P smartphones do not have the
Complaint, Case No. 5:17-cv-2185

38

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 39 of 65

1
2
3
4
5
6
7

quality that a buyer would reasonably expect.
162. CAL. CIV. CODE § 1791.1(a) states:
“Implied warranty of merchantability” or “implied warranty that
goods are merchantable” means that the consumer goods meet each
of the following:
(1)

Pass without objection in the trade under the contract
description.

(2)

Are fit for the ordinary purposes for which such goods are
used.

(3)

Are adequately contained, packaged, and labeled.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(4)

Conform to the promises or affirmations of fact made on the
container or label.

163. The Nexus 6P smartphones would not pass without objection in the
smartphone trade because of the Defect.
164. Defendants breached the implied warranty of merchantability by
manufacturing and selling Nexus 6P smartphones containing the Defect. Furthermore,
this Defect has caused Plaintiff and the other Class members to not receive the benefit
of their bargain.
165. As a direct and proximate result of Defendants’ breach of the implied
warranty of merchantability, Plaintiff and the other Class members received goods
whose defective condition substantially impairs their value to Plaintiff and the other
Class members. Plaintiff and the other Class members have been damaged as a result
of the diminished value of Defendants’ products, the products’ malfunctioning, and the
nonuse of their Nexus 6P smartphones.
166. Plaintiff and the other Class members have had sufficient direct dealings
with either Defendants or their agents (e.g., dealerships and technical support) to
establish privity of contract between Defendants on one hand, and Plaintiff and each of
the other Class members on the other hand. Nonetheless, privity is not required here
because Plaintiff and each of the other Class members are intended third-party
Complaint, Case No. 5:17-cv-2185

39

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 40 of 65

1
2
3
4
5
6
7
8
9
10
11
12

beneficiaries of contracts between Defendants and their retailers, and specifically, of
Defendants’ implied warranties. The retailers were not intended to be the ultimate
consumers of the Nexus 6P smartphones and have no rights under the warranty
agreements provided with the Nexus 6P smartphones; the warranty agreements were
designed for and intended to benefit the consumers only.
167. Pursuant to CAL. CIV. CODE §§ 1791.1(d) & 1794, Plaintiff and the other
Class members are entitled to damages and other legal and equitable relief, including,
at their election, the purchase price of their Nexus 6P smartphones, or the overpayment
or diminution in value of their Nexus 6P smartphones .
168. Pursuant to CAL. CIV. CODE § 1794, Plaintiff and the other Class members
are entitled to costs and attorneys’ fees.
COUNT VI
BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY
(CAL. COM. CODE § 2314)
(Against Defendants)
(On Behalf of the California Subclass)

13
14
15
16
17
18
19
20
21
22

169. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
170.

Plaintiff Makcharoenwoodhi brings this Count on behalf of the

California Subclass.
171.

Defendants are and were at all relevant times merchants with respect to

smartphones under CAL. COM. CODE § 2014.
172.

A warranty that the Nexus 6P smartphones were in merchantable

23

condition is implied by law in the instant transactions, pursuant to CAL. COM. CODE §

24

2314. These phones, when sold and at all times thereafter, were not in merchantable

25

condition and are not fit for the ordinary purpose for which phones are used.

26
27

173.

Defendants were provided notice of these issues by complaints lodged

by consumers with blogs, warranty claims and elsewhere.

28
Complaint, Case No. 5:17-cv-2185

40

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 41 of 65

1
2
3
4

174. As a direct and proximate result of Defendants’ breach of the warranties
of merchantability, Plaintiff and the other Class members have been damaged in an
amount to be proven at trial.
COUNT VII
VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION LAW
(CAL . B US . & P ROF . C ODE § 17200, et seq.) (“UCL”)
(Against Defendants)
(On Behalf of the California Subclass)

5
6
7
8
9
10
11
12
13
14
15
16
17

175. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
176.

California Subclass.
177. The UCL proscribes acts of unfair competition, including “any unlawful,
unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading
advertising.”
178.
a.
b.

20

c.

22

28

Violating other California laws, including California laws governing false
advertising and consumer protection.

23

27

Marketing the Class Phones as being functional and not possessing a
defect that would render them useless; and

21

26

Knowingly and intentionally concealing from Plaintiff and the other Class
members the existence of the Defect in the Class Phones;

19

25

Defendants’ conduct, as described herein, was and is in violation of the

UCL. Defendants’ conduct violates the UCL in at least the following ways:

18

24

This claim is brought on behalf of Plaintiff Makcharoenwoodhi and the

179.

Defendants’ misrepresentations and omissions alleged herein caused

Plaintiff and the other Class members to purchase their Class Phones. Absent these
misrepresentations and omissions, Plaintiff and the other Class members would not
have purchased their Class Phones at the prices they paid (had they purchased them at
all).
Complaint, Case No. 5:17-cv-2185

41

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 42 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

180.

knowledge of the Defect prior to making sales of Class Phones and because
Defendants made partial representations about the quality of the Phones, but failed to
fully disclose the Defect too.
181.

and omissions.
182.
183.

deceptive practices, and to restore to Plaintiff and members of the Class any money
they acquired by unfair competition, including restitution and/or restitutionary
disgorgement, as provided in CAL. BUS. & PROF. CODE §§ 17203 & 3345; and for such
other relief set forth below.
COUNT VIII
VIOLATION OF THE CALIFORNIA CONSUMERS
LEGAL REMEDIES ACT
(CAL . B US . & P ROF . C ODE § 1750, et seq.) (“CLRA”)
(Against Defendants)
(On Behalf of the California Subclass)

20

24
25

Plaintiff requests that this Court enter such orders or judgments as may

be necessary to enjoin Defendants from continuing their unfair, unlawful, and/or

19

23

Plaintiff seeks to enjoin further unlawful, unfair, and/or fraudulent acts

or practices by Defendants under CAL. BUS. & PROF. CODE § 17200.

18

22

Accordingly, Plaintiff and the other Class members have suffered injury

in fact, including lost money or property, as a result of Defendants’ misrepresentations

17

21

Defendants had a duty to disclose the Defect because they had exclusive

184. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
185.

This claim is brought on behalf of Plaintiff Makcharoenwoodhi and the

California Subclass.
186.

The CLRA proscribes “unfair methods of competition and unfair or

26

deceptive acts or practices undertaken by any person in a transaction intended to result

27

or which results in the sale of goods or services to any consumer.”

28
Complaint, Case No. 5:17-cv-2185

42

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 43 of 65

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

187.

The Class Phones are “goods” as defined in CAL. BUS. & PROF. CODE

§ 1761(a).
188.

Plaintiff and the other Class members are “consumers” as defined in CAL.

BUS. & PROF. CODE § 1761(d), and Plaintiff, the other Class members, and Defendants
are “persons” as defined in CAL. BUS. & PROF. CODE § 1761(c).
189.

As alleged above, Defendants made numerous representations concerning

the benefits, performance, and capabilities of the Class Phones that were misleading. In
purchasing the Class Phones, Plaintiff and the other Class members were deceived by
Defendants’ failure to disclose that the Class Phones are highly susceptible to the
Defect.
190.
CLRA.

Defendants’ conduct, as described herein, was and is in violation of the

Defendants’ conduct violates at least the following enumerated CLRA

provisions:
a.

§ 1770(a)(2): Misrepresenting the approval or certification of goods;

b.

§ 1770(a)(5): Representing that goods have sponsorship, approval,
characteristics, uses, benefits, or quantities which they do not have;

c.

§ 1770(a)(7): Representing that goods are of a particular standard, quality,
or grade, if they are of another;

d.

§ 1770(a)(9): Advertising goods with intent not to sell them as advertised;
and

e.

§ 1770(a)(16): Representing that goods have been supplied in accordance
with a previous representation when they have not.

191.

Plaintiff and the other Class members have suffered injury in fact and

actual damages resulting from Defendants’ material omissions and misrepresentations
because, inter alia, they lost money when they purchased their Class Phones or paid an
inflated purchase price for the Class Phones.
192.

Defendants knew, should have known, or were reckless in not knowing

Complaint, Case No. 5:17-cv-2185

43

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 44 of 65

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

that the Defect in the Class Phones rendered them not suitable for their intended use.
193.

Defendants had a duty to disclose the Defect because Huawei and

Google had exclusive knowledge of the Defect prior to making sales of Class Phones
and because Defendants made partial representations about the quality of the Phones,
but failed to fully disclose the Defect.
194.

The facts concealed and omitted by Defendants to Plaintiff and the other

Class members — that the Phones are defective and fail prematurely — are material in
that a reasonable consumer would have considered them to be important in deciding
whether to purchase the Class Phones or pay a lower price. Had Plaintiff and the other
Class members known about the defective nature of the Class Phones, they would not
have purchased their Class Phones, or would not have paid the prices they paid.
195.

This cause of action seeks injunctive relief at this time. However, Plaintiff

sent a demand letter to each Defendant via certified mail pursuant to the requirements
of the CLRA on April 19, 2017 providing the notice required by CAL. CIV. CODE §
1782(a). The CLRA letter advised Defendants that they are in violation of the CLRA
and must correct, replace or otherwise rectify the goods alleged to be in violation of
CAL. CIV. CODE § 1770. Defendants were further advised that in the event the relief
requested has not been provided within thirty (30) days, Plaintiff will amend his
complaint to include a request for monetary damages pursuant to the CLRA. If
Defendants do not correct, replace, or otherwise rectify the goods and issues alleged in
either Plaintiff’s CLRA notice or this complaint within the statutorily proscribed 30-day
period, Plaintiff will amend this complaint to seek both injunctive relief and monetary
damages against Defendants pursuant to the CLRA, CAL. CIV. CODE §§ 1781 and 1782.
196. Plaintiff further seeks an order awarding costs of court and attorneys’ fees
under CAL. CIV. CODE § 1780(e).

27
28
Complaint, Case No. 5:17-cv-2185

44

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 45 of 65

1

COUNT IX
VIOLATION OF CALIFORNIA’S FALSE ADVERTISING LAW
(C AL . B US . & P ROF . C ODE § 17500, et seq.) (“FAL”)
(Against Defendants)
(On Behalf of the California Subclass)

2
3
4
5
6
7
8
9

197. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
198.

California Subclass.
199.

10
12
13
14
15
16
17
18
20
21
22
23
24
25
26
27
28

The California FAL states:
“It is unlawful for any . . . corporation . . . with intent
directly or indirectly to dispose of real or personal property .
. . to induce the public to enter into any obligation relating
thereto, to make or disseminate or cause to be made or
disseminated . . . from this state before the public in any
state, in any newspaper or other publication, or any
advertising device, . . . or in any other manner or means
whatever, including over the Internet, any statement . . .
which is untrue or misleading, and which is known, or
which by the exercise of reasonable care should be known,
to be untrue or misleading.”

11

19

This claim is brought on behalf of Plaintiff Makcharoenwoodhi and the

CAL. BUS. & PROF. CODE § 17500
200.

Defendants caused to be made or disseminated through California and

the United States, through advertising, marketing and other publications, statements
that were untrue or misleading, and which were known, or which by the exercise of
reasonable care should have been known to Defendants, to be untrue and misleading to
consumers, including Plaintiff and the other Class members.
201.

Defendants

have

violated

the

California

FAL

because

the

misrepresentations and omissions regarding the reliability and functionality of Class
Phones, as set forth herein, were material and likely to deceive a reasonable consumer.
202.

Plaintiff and the other Class members have suffered an injury in fact,

Complaint, Case No. 5:17-cv-2185

45

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 46 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

including the loss of money or property, as a result of Defendants’ unfair, unlawful,
and/or deceptive practices. In purchasing their Class Phones, Plaintiff and the other
Class members relied on the misrepresentations and/or omissions of Defendants with
respect to the performance and reliability of the Class Phones. Defendants’
representations turned out not to be true because the Class Phones are defective.
203.

occur, in the conduct of Defendants’ business. Defendants’ wrongful conduct is part of
a pattern or generalized course of conduct that is still perpetuated and repeated, both in
the state of California and nationwide.
204.

Defendants from continuing their unfair, unlawful, and/or deceptive practices and to
restore to Plaintiff and the other Class members any money Defendants acquired by
unfair competition, including restitution and/or restitutionary disgorgement, and for
such other relief set forth below.
COUNT X
FRAUD/FRAUDULENT CONCEALMENT
(Against Defendants)
(On Behalf of the California Subclass)

18
19
21
22
23
24

Plaintiff, individually and on behalf of the other Class members, request

that this Court enter such orders or judgments as may be necessary to enjoin

17

20

All of the wrongful conduct alleged herein occurred, and continues to

205. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
206. This claim is brought on behalf of all Plaintiff Makcharoenwoodhi and
the California Subclass.
207.

Defendants concealed and suppressed material facts concerning the

25

performance and quality of the Class Phones, and the quality of the Huawei, Google,

26

and Nexus brands. Specifically, Defendants knew of (or should have known of) the

27

Defect, but failed to disclose it prior to or at the time they sold Class Phones to

28

consumers. Defendants did so in order to boost sales of their Nexus 6P smartphones.
Complaint, Case No. 5:17-cv-2185

46

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 47 of 65

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

208.

Plaintiff and Class members had no way of knowing that Defendants’

representations were false and misleading, or that Defendants had omitted these
imperative details. Plaintiff and Class members did not, and could not, unravel
Defendants’ deception on their own.
209.

Defendants had a duty to disclose the true performance of the Class

Phones because knowledge of the scheme and its details were known and/or accessible
only to Defendants; Defendants had superior knowledge and access to the facts; and
Defendants knew the facts were not known to, or reasonably discoverable, by Plaintiff
and the Class. Defendants also had a duty to disclose because they made many general
affirmative representations about the about the qualities of the Class Phones.
210.

On information and belief, Defendants still have not made full and

adequate disclosures, and continue to defraud consumers by concealing material
information regarding the performance of Class Phones.
211.

Plaintiff and the Class were unaware of these omitted material facts and

would not have acted as they did if they had known of the concealed and/or suppressed
facts, in that they would not have purchased the Class Phones. Plaintiff’s and
the Class’s actions were justified. Defendants were in exclusive control of the material
facts and such facts were not known to the public, Plaintiff, or the Class.
212.

Because of the concealment and/or suppression of the facts, Plaintiff and

the Class sustained damage because they did not receive the value of the premium
price paid for their Class Phones. Plaintiff and Class members would have paid less for
Class Phones had they known about the Defect and the entire truth about them, or they
would not have purchased Class Phones at all.
213.

Accordingly, Defendants are liable to the Class for damages in an

amount to be proven at trial.
214.

Defendants’ acts were done maliciously, oppressively, deliberately, with

intent to defraud, and in reckless disregard of Plaintiff’s and the Class’s rights and
Complaint, Case No. 5:17-cv-2185

47

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 48 of 65

1
2
3
4
5
6
7
8
9
10
11

well-being to enrich Defendants. Defendants’ conduct warrants an assessment of
punitive damages in an amount sufficient to deter such conduct in the future, which
amount is to be determined according to proof.
215.

otherwise unlawful conduct in connection with the sale of Class Phones and by
withholding benefits from Plaintiff and the Class at the expense of these parties.
216.

of its ill-gotten gains resulting from the conduct alleged herein.
C.

Florida Subclass
COUNT XI
BREACH OF EXPRESS WARRANTY
F LA . S TAT . § 672.313
(Against Huawei)
(On Behalf of Plaintiff Winfield and the Florida Subclass)

13
14
16
17
18
19
20
21
22
23
24
25
26
27

Equity and good conscience militate against permitting Defendants to

retain these profits and benefits, and Defendants should be required to make restitution

12

15

Defendants have been unjustly enriched by its fraudulent, deceptive, and

217. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
218. This claim is brought by Plaintiff Winfield on behalf of the Florida
Subclass.
219. Huawei is and was at all relevant times a merchant with respect to
smartphones. FLA. STAT. § 672.104.
220. Pursuant to FLA. STAT. § 672.313:
(1) Express warranties by the seller are created as follows:
(a) Any affirmation of fact or promise made by the
seller to the buyer which relates to the goods and
becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the
affirmation or promise.

28
Complaint, Case No. 5:17-cv-2185

48

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 49 of 65

1

Id.

2

221. In its warranty and in advertisements, brochures, and through other

3

statements in the media, Huawei expressly warranted that it would repair or replace

4

defects in material or workmanship free of charge if they became apparent during the

5

warranty period. For example, Huwaei also expressly warranted that they would repair

6

and/or replace “any parts of the [Phone] that are defective or malfunctioning during

7

normal usage.”

8

222. Huawei’s warranty, as well as advertisements, brochures, and other

9

statements regarding the Class Phones, formed the basis of the bargain that was reached

10

when Plaintiff Winfield and the other Class members purchased their Class Phones.

11

223. Huawei breached the express warranty to repair and adjust to correct

12

defects in materials and workmanship in the Phones. Huawei has not repaired or

13

adjusted, and has been unable to repair or adjust, the Defect in Class Phones.

14
15

224. At the time of selling Class Phones, Huawei did not provide Class Phones
that conformed to its express warranties.

16

225. Furthermore, the warranty of repair and/or adjustments to defective parts

17

fails in its essential purpose because the contractual remedy is insufficient to make

18

Plaintiff Winfield and the other Class members whole and because Huawei has failed

19

and/or has refused to adequately provide the promised remedies within a reasonable

20

time.

21

226. Accordingly, recovery by Plaintiff Winfield and the other Class members

22

is not limited to the limited warranty of repair or adjustments to parts defective in

23

materials or workmanship, and Plaintiff, individually and on behalf of the other Class

24

members, seeks all remedies as allowed by law.

25

227. Also, as alleged in more detail herein, at the time that Huawei warranted

26

and sold the Class Phones it knew that the Class Phones did not conform to the

27

warranties and were inherently defective, and Huawei wrongfully and fraudulently

28
Complaint, Case No. 5:17-cv-2185

49

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 50 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

misrepresented and/or concealed material facts regarding its Class Phones. Plaintiff
Winfield and the other Class members were therefore induced to purchase the Class
Phones under false and/or fraudulent pretenses.
228. Moreover, many of the injuries flowing from the Class Phones cannot be
resolved through the limited remedy of “replacement or adjustments,” as many
incidental and consequential damages have already been suffered due to Huawei’s
fraudulent conduct as alleged herein, and due to its failure and/or continued failure to
provide such limited remedy within a reasonable time, and any limitation on Plaintiff’s
and the other Class members’ remedies would be insufficient to make Plaintiff and the
other Class members whole.
229. Huawei was provided notice of these issues by numerous complaints filed
against it, including the instant complaint, and by numerous individual communications
sent by the other Class members before or within a reasonable amount of time after the
allegations of the Defect became public.
230. As a direct and proximate result of Huawei’s breach of express warranties,
Plaintiff Winfield and the other Class members have been damaged in an amount to be
determined at trial.
231. Due to Huawei’s breach of warranties as set forth herein, Plaintiff Winfield
and the other Class members assert as an additional and/or alternative remedy, as set
forth in FLA. STAT. § 672.608, for a revocation of acceptance of the goods, and for a
return to Plaintiff and to the other Class members of the purchase price of all Class
Phones currently owned for such other incidental and consequential damages as
allowed under FLA. STAT. §§ 672.711 and 672.608.

25
26
27
28
Complaint, Case No. 5:17-cv-2185

50

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 51 of 65

1

4

COUNT XII
BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
F LA . S TAT . § 672.314
(Against Defendants)
(On Behalf of Plaintiff Winfield and the Florida Subclass)

5

232. Plaintiffs repeat and reallege the allegations above as if fully set forth

2
3

6
7
8
9
10
11
12

herein.
233. This claim is brought by Plaintiff Winfield on behalf of the Florida
Subclass.
234. Defendants are and were at all relevant times merchants with respect to
smartphones. FLA. STAT. § 672.104.
235. A warranty that the Class Vehicles were in merchantable condition is
implied by law. FLA. STAT. § 672.314.

13

236. The Class Phones, when sold and at all times thereafter, were not in

14

merchantable condition and are not fit for the ordinary purpose for which smartphones

15

are used.

16

237. Defendants were provided notice of these issues by numerous complaints

17

filed against them, including the instant Complaint, and by numerous individual letters

18

and communications sent by Plaintiffs and other Class members before or within a

19

reasonable amount of time after the allegations of the Defect became public.

20

238. As a direct and proximate result of Defendants’ breach of the implied

21

warranty of merchantability, Plaintiff Winfield and the other Class members have been

22

damaged in an amount to be proven at trial.

23
24

239. To the extent it is required, the parties are in privity or, alternatively,
Plaintiff and Class members are the intended beneficiaries of Defendants’ contracts.

25
26
27
28
Complaint, Case No. 5:17-cv-2185

51

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 52 of 65

1

COUNT XIII
VIOLATION OF THE FLORIDA DECEPTIVE & UNFAIR
TRADE PRACTICES ACT (“FDUTPA”)
F LA . S TAT . §§ 501.204, et seq.
(Against Defendants)
(On Behalf of Plaintiff Winfield and the Florida Subclass)

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

240. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
241. This claim is brought on behalf of Plaintiff Winfield and the Florida
Subclass.
242. The FDUPTA prohibits “[u]nfair methods of competition, unconscionable
acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or
commerce.” FLA. STAT. § 501.204(1).
243. In the course of Defendants’ business, they willfully failed to disclose and
actively concealed the Defect in Class Phones as described herein.
244. Accordingly, Defendants engaged in unfair methods of competition,
unconscionable acts or practices, and unfair or deceptive acts or practices as defined in
FLA. STAT. § 501.204(1), including representing that Class Phones have characteristics,
uses, benefits, and qualities which they do not have; representing that Class Phones are
of a particular standard and quality when they are not; advertising Class Phones with
the intent not to sell them as advertised; and otherwise engaging in conduct likely to
deceive.
245. Defendants’ actions as set forth above occurred in the conduct of trade or
commerce.
246. Defendants’ conduct proximately caused injuries to Plaintiff Winfield and
the other Florida Subclass members.
247. Plaintiff Winfield and the other class members were injured as a result of
Defendants’ conduct in that they overpaid for their Class Phones and did not receive the
benefit of their bargain, they suffered out of pocket losses, and/or their Class Phones
Complaint, Case No. 5:17-cv-2185

52

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 53 of 65

1
2
3
4
5

have suffered a diminution in value. These injuries are the direct and natural
consequence of Defendants’ misrepresentations and omissions.
248. Plaintiff is entitled to actual damages and, pursuant to FLA. STAT. §
501.2105, reasonable costs and attorneys’ fees.
COUNT XIV
FRAUD/FRAUDULENT CONCEALMENT
(Against Defendants)
(On Behalf of Plaintiff Winfield and the Florida Subclass)

6
7
8
9
10
11
12
13

249. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
250. This claim is brought on behalf of all Plaintiff Winfield and the Florida
Subclass.
251.

Defendants concealed and suppressed material facts concerning the

14

performance and quality of the Class Phones, and the quality of the Huawei, Google,

15

and Nexus brands. Specifically, Defendants knew of (or should have known of) the

16

Defect, but failed to disclose it prior to or at the time they sold Class Phones to

17

consumers. Defendants did so in order to boost sales of their Nexus 6P smartphones.

18

252.

Plaintiff and Class members had no way of knowing that Defendants’

19

representations were false and misleading, or that Defendants had omitted these

20

imperative details. Plaintiff and Class members did not, and could not, unravel

21

Defendants’ deception on their own.

22

253.

Defendants had a duty to disclose the true performance of the Class

23

Phones because knowledge of the scheme and its details were known and/or accessible

24

only to Defendants; Defendants had superior knowledge and access to the facts; and

25

Defendants knew the facts were not known to, or reasonably discoverable, by Plaintiff

26

and the Class. Defendants also had a duty to disclose because they made many general

27

affirmative representations about the about the qualities of the Class Phones.

28
Complaint, Case No. 5:17-cv-2185

53

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 54 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

254.

adequate disclosures, and continue to defraud consumers by concealing material
information regarding the performance of Class Phones.
255.

facts, in that they would not have purchased the Class Phones. Plaintiff’s and
the Class’s actions were justified. Defendants were in exclusive control of the material
facts and such facts were not known to the public, Plaintiff, or the Class.
256.

26
27
28

Because of the concealment and/or suppression of the facts, Plaintiff and

the Class sustained damage because they did not receive the value of the premium
price paid for their Class Phones. Plaintiff and Class members would have paid less for
Class Phones had they known about the Defect and the entire truth about them, or they
would not have purchased Class Phones at all.
257.

Accordingly, Defendants are liable to the Class for damages in an

amount to be proven at trial.
258.

Defendants’ acts were done maliciously, oppressively, deliberately, with

intent to defraud, and in reckless disregard of Plaintiff’s and the Class’s rights and
well-being to enrich Defendants. Defendants’ conduct warrants an assessment of
punitive damages in an amount sufficient to deter such conduct in the future, which
amount is to be determined according to proof.
COUNT XV
UNJUST ENRICHMENT
(Against Defendants)
(On Behalf of Plaintiff Winfield and the Florida Subclass)

23
25

Plaintiff and the Class were unaware of these omitted material facts and

would not have acted as they did if they had known of the concealed and/or suppressed

22
24

On information and belief, Defendants still have not made full and

259. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
260.

This claim is brought by Plaintiff Winfield on behalf of the Florida

Subclass. This claim is pled in the alternative to the other claims set forth herein.
Complaint, Case No. 5:17-cv-2185

54

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 55 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

261.

Defendants have profited and benefited from Plaintiff’s and Class members’ purchase
of Class Phones containing the Defect.
262.

alleged herein, Plaintiff and the Class were not receiving Phones of the quality, nature,
fitness, or value that had been represented by Defendants, and that a reasonable
consumer would expect.
263.

withholding benefits from Plaintiff and the Class at the expense of these parties.
264.

23
24
25
26
27

Equity and good conscience militate against permitting Defendants to

retain these profits and benefits, and Defendants should be required to make restitution
of their ill-gotten gains resulting from the conduct alleged herein.
D.

Indiana Subclass
COUNT XVI
BREACH OF EXPRESS WARRANTY
I ND . C ODE § 26-1-2-313
(Against Huawei)
(On Behalf of Plaintiff Beheler and the Indiana Subclass)

19

22

Defendants have been unjustly enriched by their fraudulent, deceptive,

and otherwise unlawful conduct in connection with the sale of Class Phones and by

18

21

Defendants have voluntarily accepted and retained these profits and

benefits with full knowledge and awareness that, as a result of their misconduct

17

20

As the intended and expected result of its conscious wrongdoing,

265. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
266. This claim is brought by Plaintiff Beheler on behalf of the Indiana
Subclass.
267. Huawei is and was at all relevant times a merchant with respect to
smartphones. IND. CODE § 26-1-2-104.
268. Pursuant to IND. CODE § 26-1-2-313:
(1) Express warranties by the seller are created as follows:

28
Complaint, Case No. 5:17-cv-2185

55

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 56 of 65

1

(a) any affirmation of fact or promise made by the
seller to the buyer which relates to the goods and
becomes part of the basis of the bargain creates an
express warranty that the goods shall conform to the
affirmation or promise.

2
3
4
5

Id.

6

269. In its warranty and in advertisements, brochures, and through other

7

statements in the media, Huawei expressly warranted that it would repair or replace

8

defects in material or workmanship free of charge if they became apparent during the

9

warranty period. For example, Huwaei also expressly warranted that they would repair

10

and/or replace “any parts of the [Phone] that are defective or malfunctioning during

11

normal usage.”

12

270. Huawei’s warranty, as well as advertisements, brochures, and other

13

statements in the media regarding the Class Phones, formed the basis of the bargain that

14

was reached when Plaintiff Beheler and the other Class members purchased their Class

15

Phones, thereby constituting express warranties under IND. CODE § 26-1-2-313.

16

271. Huawei breached the express warranty to repair and adjust to correct

17

defects in materials and workmanship in the Phones. Huawei has not repaired or

18

adjusted, and has been unable to repair or adjust, the Defect in Class Phones.

19
20

272. At the time of selling Class Phones, Huawei did not provide Class Phones
that conformed to its express warranties.

21

273. Furthermore, the warranty of repair and/or adjustments to defective parts

22

fails in its essential purpose because the contractual remedy is insufficient to make

23

Plaintiff Beheler and the other Class members whole and because Huawei has failed

24

and/or has refused to adequately provide the promised remedies within a reasonable

25

time.

26

274. Accordingly, recovery by Plaintiff Beheler and the other Class members is

27

not limited to the limited warranty of repair or adjustments to parts defective in

28
Complaint, Case No. 5:17-cv-2185

56

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 57 of 65

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

materials or workmanship, and Plaintiff, individually and on behalf of the other Class
members, seeks all remedies as allowed by law.
275. Also, as alleged in more detail herein, at the time that Huawei warranted
and sold the Class Phones it knew that the Class Phones did not conform to the
warranties and were inherently defective, and Huawei wrongfully and fraudulently
misrepresented and/or concealed material facts regarding its Class Phones. Plaintiff
Beheler and the other Class members were therefore induced to purchase the Class
Phones under false and/or fraudulent pretenses.
276. Moreover, many of the injuries flowing from the Class Phones cannot be
resolved through the limited remedy of “replacement or adjustments,” as many
incidental and consequential damages have already been suffered due to Huawei’s
fraudulent conduct as alleged herein, and due to its failure and/or continued failure to
provide such limited remedy within a reasonable time, and any limitation on Plaintiff’s
and the other Class members’ remedies would be insufficient to make Plaintiff and the
other Class members whole.
277. Huawei was provided notice of these issues by numerous complaints filed
against it, including the instant complaint, and by numerous individual communications
sent by the other Class members before or within a reasonable amount of time after the
allegations of the Defect became public.
278. As a direct and proximate result of Huawei’s breach of express warranties,
Plaintiff Beheler and the other Class members have been damaged in an amount to be
determined at trial.
279. Due to Defendant’s breach of warranties as set forth herein, Plaintiff and
the other Indiana Subclass members assert as an additional and/or alternative remedy,
as set forth in IND. CODE § 26-1-2-313, for a revocation of acceptance of the goods,
and for a return to Plaintiff and to the other Class members of the purchase price of all

28
Complaint, Case No. 5:17-cv-2185

57

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 58 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

Class Phones currently owned, and for such other incidental and consequential
damages as allowed under IND. CODE §§ 26-1-2-711 and 26-1-2-608.
COUNT XVII
BREACH OF THE IMPLIED WARRANTY OF MERCHANTABILITY
I ND . C ODE § 26-1-2-314
(Against Defendants)
(On Behalf of Plaintiff Beheler and the Indiana Subclass)
280. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
281. This claim is brought by Plaintiff Beheler on behalf of the Indiana
Subclass.
282. Defendants are and were at all relevant times merchants with respect to
smartphones. IND. CODE § 26-1-2-104.
283. A warranty that the Class Phones were in merchantable condition is
implied by law in the instant transactions. IND. CODE § 26-1-2-314.

16

284. The Class Phones, when sold and at all times thereafter, were not in

17

merchantable condition and are not fit for the ordinary purpose for which smartphones

18

are used.

19

285. Defendants were provided notice of these issues by numerous complaints

20

filed against then, including the instant Complaint, and by numerous individual letters

21

and communications sent by Plaintiffs and other Class members before or within a

22

reasonable amount of time after the allegations of the Defect became public.

23

286. As a direct and proximate result of Defendants’ breach of the implied

24

warranty of merchantability, Plaintiff Beheler and the other Class members have been

25

damaged in an amount to be proven at trial.

26
27

287. To the extent it is required, the parties are in privity or, alternatively,
Plaintiff and Class members are the intended beneficiaries of Defendants’ contracts.

28
Complaint, Case No. 5:17-cv-2185

58

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 59 of 65

1
2
3
4
5
6
7
8
9
10
11
12

COUNT XVIII
VIOLATIONS OF THE INDIANA DECEPTIVE CONSUMER SALES ACT
I ND . C ODE §§ 24-5-0.5-1, et seq. (“IDCSA”)
(Against Defendants)
(On Behalf of Plaintiff Beheler and the Indiana Subclass)
288. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
289. This claim is brought by Plaintiff Beheler on behalf of the Indiana
Subclass.
290. The IDCSA allows a person to bring an action for damages from “relying
upon an uncured or incurable deceptive act.” IND. CODE 24-5-0.5-4(a).
291. Additionally, the IDCSA expressly allows persons damaged by a
“deceptive act” to bring a class action. Id. § 24-5-0.5-4(b).

13

292. The IDCSA defines a “deceptive act” as when a supplier commits an

14

“unfair, abusive, or deceptive act, omission, or practice in connection with a consumer

15

transaction” whether such conduct occurred before, during, or after the transaction. Id. §

16

24-5-0.5-3(a).

17

misrepresentations.” Id.

Further,

deceptive

acts

“include

both

implicit

and

explicit

18

293. The IDCSA enumerates some “representations as to the subject matter of

19

the consumer transaction, made orally, in writing, or by electronic communication, by a

20

supplier” that are considered per se deceptive acts. Id. § 24-5-0.5-3(b). Pertinent here

21

are the following deceptive acts which Defendants have committed as alleged herein:

22

a.

(b)(1): That such subject of a consumer transaction has sponsorship,

23

approval, performance, characteristics, accessories, uses, or benefits

24

it does not have which the supplier knows or should reasonably

25

know it does not have.

26

b.

(b)(2): That such subject of a consumer transaction is of a particular

27

standard, quality, grade, style, or model, if it is not and if the supplier

28

knows or should reasonably know that it is not.
Complaint, Case No. 5:17-cv-2185

59

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 60 of 65

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

c.

(b)(8): That such consumer transaction involves or does not involve a
warranty, a disclaimer of warranties, or other rights, remedies, or
obligations, if the representation is false and if the supplier knows or
should reasonably know that the representation is false.

294. Defendants represented that Class Phones are premium products of high
quality, including (among other things) that the Phones have high-performing batteries
that will keep consumers “talking, texting, and apping into the night.”
295. But Defendants sold Class Phones to Plaintiff and the Indiana Subclass
that do not perform or have the characteristics, uses, benefits or quality that Defendants
represented its Class Phones to have. Instead, Defendants sold to Plaintiff and members
of the Indiana Subclass smartphones that either bootloop or, more commonly, cease
operating despite indicating high percentages of remaining battery life.
296. The Defect is incurable and cannot be remedied as indicated by the fact
that attempted repairs and replacement devices result in the same issues for consumers.
297. Defendants have refused and continue to refuse to provide an adequate
remedy for the issues that plague Class Phones.
298. As set forth herein, Defendants have engaged in multiple deceptive acts in
violation of the IDCSA. Therefore, Plaintiff Beheler seeks both injunctive relief and
monetary damages against Defendants pursuant to the IDCSA, §§ 2, 4.
299. Furthermore, Defendants omitted and concealed information about the
Defect from Plaintiff and Indiana Subclass members. Defendants had a duty to disclose
the truth about Class Phones, including the Defect, and Plaintiff and Class members
could not have discovered the truth on their own. Plaintiff and Class members relied
upon Defendants’ representations and omissions with respect to Class Phones, and it
was Defendants’ concealment of the Defect that induced Plaintiff and Class members to
purchase Class Phones.

28
Complaint, Case No. 5:17-cv-2185

60

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 61 of 65

1
2
3
4
5
6
7

300. As a result of Defendants’ conduct alleged herein, Plaintiff and members
of the Indiana Subclass have suffered irreparable harm. Plaintiff’s and the other Indiana
Subclass members’ injuries were proximately caused by Defendants’ conduct as alleged
herein. Plaintiff, individually and on behalf of all other Indiana Subclass members, seek
an award of damages for Defendants’ willful violations of the IDCSA, costs, attorneys’
fees, and such other relief as deemed appropriate and proper by the Court.
COUNT XIX
FRAUD/FRAUDULENT CONCEALMENT
(Against Defendants)
(On Behalf of Plaintiff Beheler and the Indiana Subclass)

8
9
10
11
12
13
14
15

301. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
302. This claim is brought on behalf of all Plaintiff Beheler and Indiana
Subclass.
303.

Defendants concealed and suppressed material facts concerning the

16

performance and quality of the Class Phones, and the quality of the Huawei, Google,

17

and Nexus brands. Specifically, Defendants knew of (or should have known of) the

18

Defect, but failed to disclose it prior to or at the time they sold Class Phones to

19

consumers. Defendants did so in order to boost sales of their Nexus 6P smartphones.

20

304.

Plaintiff and Class members had no way of knowing that Defendants’

21

representations were false and misleading, or that Defendants had omitted these

22

imperative details. Plaintiff and Class members did not, and could not, unravel

23

Defendants’ deception on their own.

24

305.

Defendants had a duty to disclose the true performance of the Class

25

Phones because knowledge of the scheme and its details were known and/or accessible

26

only to Defendants; Defendants had superior knowledge and access to the facts; and

27

Defendants knew the facts were not known to, or reasonably discoverable, by Plaintiff

28
Complaint, Case No. 5:17-cv-2185

61

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 62 of 65

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

and the Class. Defendants also had a duty to disclose because they made many general
affirmative representations about the about the qualities of the Class Phones.
306.

adequate disclosures, and continue to defraud consumers by concealing material
information regarding the performance of Class Phones.
307.

facts, in that they would not have purchased the Class Phones. Plaintiff’s and
the Class’s actions were justified. Defendants were in exclusive control of the material
facts and such facts were not known to the public, Plaintiff, or the Class.
308.

28

Because of the concealment and/or suppression of the facts, Plaintiff and

the Class sustained damage because they did not receive the value of the premium
price paid for their Class Phones. Plaintiff and Class members would have paid less for
Class Phones had they known about the Defect and the entire truth about them, or they
would not have purchased Class Phones at all.
309.

Accordingly, Defendants are liable to the Class for damages in an

amount to be proven at trial.
310.

Defendants’ acts were done maliciously, oppressively, deliberately, with

intent to defraud, and in reckless disregard of Plaintiff’s and the Class’s rights and
well-being to enrich Defendants. Defendants’ conduct warrants an assessment of
punitive damages in an amount sufficient to deter such conduct in the future, which
amount is to be determined according to proof.
COUNT XX
UNJUST ENRICHMENT
(Against Defendants)
(On Behalf of Plaintiff Beheler and the Indiana Subclass)

25
27

Plaintiff and the Class were unaware of these omitted material facts and

would not have acted as they did if they had known of the concealed and/or suppressed

24
26

On information and belief, Defendants still have not made full and

311. Plaintiffs repeat and reallege the allegations above as if fully set forth
herein.
Complaint, Case No. 5:17-cv-2185

62

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 63 of 65

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

312.

This claim is brought by Plaintiff Beheler on behalf of the Indiana

Subclass. This claim is pled in the alternative to the other claims set forth herein.
313.

As the intended and expected result of its conscious wrongdoing,

Defendants have profited and benefited from Plaintiff’s and Class members’ purchase
of Class Phones containing the Defect.
314.

Defendants have voluntarily accepted and retained these profits and

benefits with full knowledge and awareness that, as a result of their misconduct
alleged herein, Plaintiff and the Class were not receiving Phones of the quality, nature,
fitness, or value that had been represented by Defendants, and that a reasonable
consumer would expect.
315.

Defendants have been unjustly enriched by their fraudulent, deceptive,

and otherwise unlawful conduct in connection with the sale of Class Phones and by
withholding benefits from Plaintiff and the Class at the expense of these parties.
316.

Equity and good conscience militate against permitting Defendants to

retain these profits and benefits, and Defendants should be required to make restitution
of their ill-gotten gains resulting from the conduct alleged herein.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and similarly situated
members of the Classes, respectfully requests that this Court:
(a)

Determine that this action is a proper class action, certifying Plaintiffs as class

representatives under Federal Rule of Civil Procedure 23 and Plaintiffs’ counsel as Class
Counsel;
(b)

Award all actual, general, special, incidental, statutory, punitive and

consequential damages to which Plaintiffs and Class members are entitled;
(c)

Award pre-judgment and post-judgment interest on such monetary relief;

(d)

Grant appropriate injunctive and/or declaratory relief, including, without

limitation, an order that requires Defendants to repair, recall, and/or replace the Class
Complaint, Case No. 5:17-cv-2185

63

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 64 of 65

1
2
3
4
5
6
7
8
9
10
11
12

Phones and to extend the applicable warranties to a reasonable period of time, or, at a
minimum, to provide Plaintiffs and Class members with appropriate curative notice
regarding the existence and cause of the Defect;
(e)

Award Plaintiffs and Class members restitutionary or other equitable

(f)

Award Plaintiffs and Class members their reasonable costs and expenses

relief;
incurred in this action, including counsel fees and expert fees; and
(g)

Award such other and further relief as the Court may deem just and

proper.
DEMAND FOR JURY TRIAL
Plaintiff respectfully demands a jury trial for all claims so triable.

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Complaint, Case No. 5:17-cv-2185

64

 Case 5:17-cv-02185-HRL Document 1 Filed 04/19/17 Page 65 of 65

1

Dated: April 19, 2017

Respectfully submitted,

2
3

By:

4
5
6
7
8
9
10

/s/ Cory S. Fein
Cory S. Fein
(California Bar No. 250758)
Cory Fein Law Firm
712 Main St., #800
Houston, TX 77002
Telephone: (281) 254-7717
Facsimile: (530) 748-0601
Email: cory@coryfeinlaw.com
Benjamin F. Johns (pro hac vice to be filed)
Andrew W. Ferich (pro hac vice to be filed)
Jessica L. Titler (pro hac vice to be filed)
CHIMICLES & TIKELLIS LLP
One Haverford Centre
361 West Lancaster Avenue
Haverford, PA 19041
Phone: (610) 642-8500
Fax: (610) 649-3633
Email: bfj@chimicles.com
Email: awf@chimicles.com
Email: jlt@chimicles.com

11
12
13
14
15
16
17
18
19

Counsel for Plaintiffs and
the Proposed Class

20
21
22
23
24
25
26
27
28
Complaint, Case No. 5:17-cv-2185

65