0111131111 BURSOR FISHER, P.A. L. Timothy Fisher (State Bar No. 191626) Frederick J. 111 (State Bar No. 320783) Brittany S. Scott (State Bar No. 327132) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E-mail: bscott@bursor.com BURSOR FISHER, P.A. Philip L. Fraietta (Pro Hac Vice Forthcoming) 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837?7150 Facsimile: (212) 989-9163 E-Mail: pfraietta@bursor.com Attorneys for Plaintiffs 1 Ii 1 ti Sllpul "101 [1111- 1 (?111111 11121 0an1; Angclu APR 15 21120 :i?JCFi?i r1. 1. . .xl. mm Depuu Sicwn Drew SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES KIM ATKINSON and KYLE STEVENS, on behalf of themselves and all others similarly situated, Plaintiff, V. FOX-HULU HOLDINGS, INC. and WALT DISNEY DIRECT-TO-CONSUMERS INTERNATIONAL, Defendants. CaseNo. 208ch14790 CLASS ACTION COMPLAINT JURY TRIAL DEMANDED T?il 1511232882751 CLASS ACTION COMPLAINT Plaintiffs Kim Atkinson and Kyle Stevens ("Plaintiffs?) individually and on behalf of all others similarly situated, make the following allegations upon information and belief, except as to allegations speci?cally pertaining to Plaintiffs which are based on their personal knowledge. NATURE OF THE ACTION 1. This is putative class action lawsuit regarding Defendants? false and misleading labeling and marketing of its Hulu subscriptions in the: Basic Plan, Premium Plan, Basic Live TV, and Premium Live TV (the ?Hulu Subscriptions?). The marketing and advertising of the Hulu Subscriptions contain numerous false and misleading claims that the Hulu Subscriptions will provide high quality streaming services such that consumers can watch its ?on all your favorite devices? (the ?Streaming Quality Claims?). Defendants advertise their subscription services as high quality and misleads consumers into believing that the Hulu Subscriptions will provide the same high quality video streaming on computer devices and Hulu?s applications alike even though the Hulu Subscriptions accessed on computer devices are throttled to prevent high quality streaming. By doing so, Defendants are able to charge a substantial price premium for its Hulu Subscriptions on the account of its false Streaming Quality Claims. 2. Hulu subscribers are reporting that, contrary to Hulu?s Streaming Quality Claims, the Hulu Subscriptions are in fact throttled (1212. provide reduced streaming quality) therefore computer users do not receive the same quality of service. In short, the Steaming Quality Claims are false and misleading. 3. Plaintiffs seek relief in this action individually, and as a class action on behalf of similarly situated purchases of Defendants? Hulu Subscriptions, for: breach of express warranty; (ii) violation of Califomia?s Consumer Legal Remedies Act Cal. Civil Code 1750, et seq; violation of California?s Unfair Competition Law Cal. Bus. Prof. Code 17200. et seq; (iv) violation of California?s False Advertising Law Cal. Bus. Prof. Code 17500, et seq; violation of New York?s General Business Law ?349; (vii) violation of New York?s GBL 350; (vii) unjust enrichment; and fraud. CLASS ACTION COMPLAINT THE PARTIES 4. Plaintiff Kim Atkinson is a citizen of California, residing in Hayward, California. In 2016 Plaintiff Atkinson purchased Hulu?s premium plan from Hulu?s website to stream video on her computer. Prior to her purchase of her Hulu Subscription, Plaintiff Atkinson reviewed the marketing and advertising on Hulu?s website and saw that her Hulu Subscription would purportedly provide high quality streaming on her computer. Plaintiff Atkinson relied on that advertising and marketing to choose her Hulu Subscription over comparable streaming services. Plaintiff Atkinson saw these representations prior to, and at the time of purchase, and understood them as representations and warranties that her Hulu Subscription would include high quality streaming. Plaintiff Atkinson relied on these representations and warranties in deciding to purchase her Hulu Subscription. Accordingly, these representations and warranties were part of the basis of the bargain, in that she would not have purchased her Hulu Subscription on the same terms had she known these representations were not true. However, Plaintiff Atkinson remains interested in purchasing a high quality streaming services, and would consider Hulu in the future if Defendants cease throttling service to computers. In making her purchase, Plaintiff Atkinson paid a substantial price premium due to the false and misleading Streaming Quality Claims. However, Plaintiff Atkinson did not receive the benefit of her bargain, because her Hulu Subscription does not provide high quality streaming. Plaintiff Atkinson also understood that in purchasing Hulu, she was entering directly into a contract with Defendants for her Hulu Subscription. 5. Plaintiff Kyle Stevens is a citizen of New York, residing in New York, New York. On November 26, 2018, Plaintiff Stevens purchased Hulu?s premium plan from Hulu?s website to stream video on his computer. Prior to his purchase of his Hulu Subscription, Plaintiff Stevens reviewed the marketing and advertising on Hulu?s website and saw that his Hulu Subscription would purportedly provide high quality streaming on his computer. Plaintiff Stevens relied on that advertising and marketing to choose his Hulu Subscription over comparable streaming services. Plaintiff Stevens saw these representations prior to, and at the time of purchase, and understood them as representations and warranties that his Hulu Subscription would include high quality streaming. Plaintiff Stevens relied on these representations and warranties in deciding to purchase CLASS ACTION COMPLAINT his Hulu Subscription. Accordingly, these representations and warranties were part of the basis of the bargain, in that he would not have purchased his Hulu Subscription on the same terms had he known these representations were not true. However, Plaintiff Stevens remains interested in purchasing a high quality streaming services, and would consider Hulu in the future if Defendants cease throttling service to computers. In making his purchase, Plaintiff Stevens paid a substantial price premium due to the false and misleading Streaming Quality Claims. However, Plaintiff Stevens did not receive the benefit of his bargain, because his Hulu Subscription does not provide high quality streaming. Plaintiff Stevens also understood that in purchasing Hulu, he was entering directly into a contract with Defendants for his Hulu Subscription. 6. Defendant Fox-Hulu Holdings, Inc. (?Hulu?) is a Delaware corporation with its principal place of business at 500 S. Buena Vista St., Burbank CA 91521. Hulu designs, sells, and/or distributes Hulu Subscriptions, and is responsible for the advertising, marketing, and trade dress of the Hulu Subscriptions. The planning and execution of the advertising, marketing, testing, and/or corporate operations concerning the Hulu Subscriptions and Streaming Quality Claims was primarily carried out at Hulu?s headquarters and facilities within California. The policies, practices, acts, and omissions giving rise to this Action were developed in, and emanated from, Hulu?s headquarters in Burbank, California. 7. Defendant Walt Disney Direct-To-Consumer International (?Walt Disney?) is a California corporation with its principal places of business at 500 S. Buena Vista St., Burbank CA 9152]. Walt Disney designs, sells, and/or distributes Hulu Subscriptions, and is responsible for the advertising, marketing, and trade dress of the Hulu Subscriptions. The planning and execution of the advertising, marketing, testing, and/or corporate operations concerning the Hulu Subscriptions and Streaming Quality Claims was primarily carried out at Walt Disney?s headquarters and facilities within California. The policies, practices, acts, and omissions giving rise to this Action were developed in, and emanated from, Walt Disney?s headquarters in Burbank, California. Lu CLASS ACTION COMPLAINT JURISDICTION AND VENUE 8. This Court has subject matter over this class action. This Court has personal jurisdiction over the parties because Plaintiff Atkinson resides in California and submits to the jurisdiction of the Court, and because Defendants, at all times relevant hereto, have systematically and continually conducted, and continue to conduct business in this state. 9. Venue is prOper in this Court pursuant to Civil Code 1780(d). Defendants conduct business in this County and throughout the State of California. Defendants? principal place of business is in this County. 10. Clause 15.3 ofthe Parties contract governs this dispute, designating the Los Angeles County courts as the proper venue for this dispute. FACTUAL ALLEGATIONS 1 1. Hulu is a subscription-based video on demand service that provides video streaming of commercial television and movies to consumers. Hulu?s library includes ~85,000 TV episodes and movies.1 12. In 2019, Hulu reported that it had 82 million visitors, with an average of 2.9 viewers per Hulu account.2 Ofthose viewers, 26.8 million are paid subscribers and 1.8 million are unpaid subscribers.3 13. Hulu promises consumers that it provides access to ?All Your TV In One Place:?4 All Your TV In One Place 1 9/di 1 20322 7954/ (last accessed April 2, 2020). 3 (last accessed April 2,2020). 3 //variety. com/2019/digita1/news/hu1u? 28- million- total- subscribers? n-ewfronts 2019- 1203202212/ (last accessed March 31,2020) 4 (last accessed April 2, 2020). CLASS ACTION COMPLAINT 4 14. Every Hulu Subscription ?lets you watch exclusive series, hit movies, Originals, Kid shows, and tons more.?5 15. Further, Hulu promises that Hulu Subscribers will be able to ?Watch Thousands of Shows and Movies Anytime, Anywhere:? Watch Thousands of Shows and Movies Anytime, Anywhere START YOUR FREE TRIAL 16. Hulu also promises that Hulu Subscribers will be able ?watch [its library] on your favorite devices.? As well as promising that ?Hulu Subscribers [will] be able to stream your favorite content from the comfort of your very own couch to the confines of public transportation.?6 17. Computers are among the devices that Hulu claims Hulu Subscribers will be able to use to access the Hulu Subscriptions: ?You can watch shows and movies on Hulu.com using a 18. However, Hulu Subscribers do not get the benefit of their bargain because Hulu is throttling access to Hulu?s high quality streaming for computer users. As such, Hulu Subscribers that access Hulu by computer cannot ?stream [their] favorite content" from their ?favorite devices? as promised. 19. Consumers have reported their complaints to Defendants. For example, one consumer reported directly to Defendants: my PC the quality is horrible. I tried chrome and ?refox. Tried them in private mode, checked my connection speed and I'm at 50/50 mbps. I can 5 (last accessed April 2, 2020). 6 (last accessed April 2, 2020). CLASS ACTION COMPLAINT 5 -_25 26 27 28 download things just fine so it doesn't seem to be my connection, also because other streaming services are streaming in HD just fine on the A second stated: I think your video service is stuck in Data Saver mode [lowest streaming quality]. This issue occurs when watching Live TV on a A third consumer reported: ?Hulu disabled HD playback on browsers It's 2019, I am paying hulu $50 a month and yet I am stuck watching everything in like 360-480P resolution.?9 20. Defendants throttle streaming quality to consumers because in order to force their customers to access Hulu using through proprietary Hulu applications rather than web browsers. Defendants use their applications to collect personal information such as location data, email address, and device serial numbers. This information is subsequently monetized and resold to advertisers, social networking sites, business partners, and other third party companies. 21. Defendants? prefer that users use the 11qu applications because, compared to computer browsers, applications provide more direct access to consumer?s personal data during online and of?ine use. This opens up a multitude of opportunities for Defendants to customize their data collection and further monetize their subscribers. CLASS ACTION ALLEGATIONS 22. Plaintiffs bring this action on their own behalf, and as representatives of all similarly situated individuals pursuant to Cal. Code Civ. Proc. 382 and Cal. Civ. Code 1781 and the below?de?ned Classes of consumers who purchased Hulu Subscriptions: 7 not- firestick?sl oid=00D4100000055aI&sl (last accessed Apr. 8, 2020). 8 in?data-saver (last accessed Apr. 8, 2020). 9 (last accessed Apr. 8, 2020). CLASS ACTION COMPLAINT 6 Nationwide Class: All persons in the United States that purchased Hulu Subscriptions; California Subclass: All persons in California that purchased Hulu Subscriptions; and New York Subclass: All persons in New York that purchased Hulu Subscriptions. Excluded from the Class are persons who made such purchase for the purpose of resale. Also excluded are Defendants and their affiliates, parents, subsidiaries, employees, of?cers, agents, and directors, as well as anyjudicial of?cers presiding over this matter and the members of their immediate families andjudicial staff. 23. Members of the Nationwide Class, California Subclass, and New York Subclass are so numerous that their individual joinder herein is impracticable. On information and belief, members of the Nationwide Class, California Subclass, and New York Subclass number in the tens or hundreds of thousands. The precise number of Class Members and their identities are unknown to Plaintiffs at this time but may be determined through discovery. Class Members may be notified of the pendency of this action by mail and/or publication through the distribution records of Defendants and third?party retailers and vendors. 24. Common questions of law and fact exist as to all Class Members and predominate over questions affecting only individual Class Members. Common legal and factual questions include, but are not limited to: whether the Streaming Quality Claims are false or misleading; whether Defendants warranted the Streaming Quality Claims in the marketing or advertising; whether Defendants breached these warranties; and whether Defendants committed statutory fraud by doing so. 25. Plaintiffs? claims are typical of the claims of the Nationwide Class, California Subclass, and New York Subclass in that they purchased the 11qu Subscriptions in reliance on the representations and warranties described above, and suffered a loss as result of those purchases. CLASS ACTION COMPLAINT 7 26. Plaintiffs are adequate representatives of the Class, California Subclass, and New York Subclass because their interests do not con?ict with the interests of the Class Members they seek to represent, they have retained competent counsel experienced in prosecuting class actions, and they intend to prosecute this action vigorously. The interests of Class Members will be fairly and adequately protected by Plaintiffs and their counsel. 27. The class mechanism is superior to other available means for the fair and ef?cient adjudication of the claims of the Nationwide Class, California Subclass, and New York Subclass Members. Each individual Class Member may lack the resources to undergo the burden and expense of individual prosecution of the complex and extensive litigation necessary to establish Defendants? liability. Individualized litigation increases the delay and expense to all parties and multiplies the burden on the judicial system presented by the complex legal and factual issues of this case. Individualized litigation also presents a potential for inconsistent or contradictory judgments. In contrast, the class action device presents far fewer management dif?culties and provides the bene?ts of single adjudication, economy of scale, and comprehensive supervision by a single court on the issue of Defendants? liability. Class treatment of the liability issues will ensure that all claims and claimants are before this Court for consistent adjudication of the liability issues FIRST CAUSE OF ACTION (Breach of Express Warranty) 28. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 29. Plaintiffs bring this claim individually and on behalf of the Members ofthe proposed Nationwide Class and Subclasses against Defendants. 30. Defendants, as the designers, manufacturers, marketers, distributors, and/or sellers, expressly warranted that the Hulu Subscriptions would provide high quality streaming on Subscribers? computers. 31. In fact, the Hulu Subscriptions are not fit for such purpose because each of these express warranties are false and misleading. CLASS ACTION COMPLAINT 8 direct and proximate cause of Defendants? breach of express warranty, Plaintiffs and Class Members have been injured and harmed because: they would not have purchased their Hulu Subscriptions on the same terms if the true facts were known about the product; they paid a price premium for their Hulu Subscriptions due to Defendants? promises that their Hulu Subscriptions would provide high quality streaming on computer devices; and the Hulu Subscriptions did not have the characteristics as promised by Defendants. SECOND CAUSE OF ACTION (Violation Of California?s Consumers Legal Remedies Act, California Civil Code 1750, et seq.) 33. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 34. Plaintiff Atkinson brings this claim individually and on behalf of the Members of the proposed Nationwide Class and California Subclass against Defendants. 35. Califomia?s Consumers Legal Remedies Act, Cal. Civ. Code l770(a)(5), prohibits ?[r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, bene?ts, or quantities which they do not have or that a person has a sponsorship, approval, status, af?liation, or connection which he or she does not have.? 36. Defendants violated this provision by misrepresenting that the Hulu provides ?high quality streaming? on computer devices. 37. Plaintiff Atkinson, the Nationwide Class, and the California Subclass suffered injuries caused by Defendants because: they would not have purchased their Hulu Subscriptions on the same terms if the true facts were known about the product; they paid a price premium for their Hulu Subscriptions due to Defendants? promises that it would provide high quality streaming on computer devices; and the Hulu Subscriptions did not have the characteristics as promised by Defendant. 38. On or about April 3, 2020, prior to filing this action, a CLRA notice letter was served on Defendants which complies in all respects with California Civil Code 1782(a). Plaintiffs sent Defendants a letter via certified mail. return receipt requested, advising Defendants that it is in violation of the CLRA and demanding that it cease and desist from such violations and CLASS ACTION COMPLAINT 9 make full restitution by refunding the monies received therefrom. A true and correct copy of Plaintiffs? letter is attached hereto as Exhibit A. 39. Wherefore, Plaintiff Atkinson seeks injunctive relief for this violation of the CLRA. THIRD CAUSE OF ACTION (Violation 0f California?s Unfair Competition Law, California Business Professions Code 17200, et seq.) 40. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 41. Plaintiff Atkinson bring this claim individually and on behalf of the Members of the proposed Nationwide Class and the California Subclass against Defendants. 42. Defendants are subject to California?s Unfair Competition Law. Cal. Bus. Prof. Code 17200, et seq. The UCL provides, in pertinent part: ?Unfair competition shall mean and include unlawful, unfair or fraudulent business practices and unfair, deceptive, untrue or misleading advertising 43. Defendants? misrepresentations and other conduct, described herein, violated the ?unlawful? prong of the UCL by violating the CLRA as described herein; the AL as described herein; and Ca]. Com. Code 2607. 44. Defendants? misrepresentations and other conduct, described herein, violated the ?unfair? prong of the UCL in that their conduct is substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and unscrupulous, as the gravity of the conduct outweighs any alleged bene?ts. 45. Defendants violated the "fraudulent? prong of the UCL by making misrepresentations about the Hulu Subscriptions, as described herein. 46. Plaintiff Atkinson, the Nationwide Class, and the California Subclass lost money or property as a result of Defendants? UCL violations because: they would not have purchased their Hulu Subscriptions on the same terms if the true facts were known about the product; they paid a price premium for their Hulu Subscriptions due to Defendants? promises that they would provide high quality streaming on computer devices; and the Hulu Subscriptions did not have the characteristics as promised by Defendants. CLASS ACTION 10 FOURTH CAUSE OF ACTION (Violation Of California?s False Advertising Law, California Business Professions Code 17500, et seq.) 47. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 48. Plaintiff Atkinson brings this claim individually and on behalf of the Members of the proposed Nationwide Class and California Subclass against Defendants. 49. California?s False Advertising Law, Cal. Bus. Prof. Code 17500, et seq., makes it ?unlawful for any person to make or disseminate or cause to be made or disseminated before the public in this state, in any advertising device or in any other manner or means whatever, including over the Internet, any statement, concerning personal property or services, professional or otherwise, or performance or disposition thereof, 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.? 50. Defendants committed acts of false advertising. as de?ned by ?l7500. by misrepresenting that the Hulu Subscriptions would provide high quality streaming on computer devices. 51. Defendants knew or should have known, through the exercise of reasonable care that their representations about the Hulu Subscriptions were untrue and misleading. 52. Defendants? actions in violation of 17500 were false and misleading such that the general public is and was likely to be deceived. 53. Plaintiff Atkinson and the California Subclass lost money or property as a result of Defendants? FAL violations because: they would not have purchased the Hulu Subscriptions on the same terms if the true facts were known about the product; they paid a price premium for the Hulu Subscriptions due to Defendants? promises that they would provide high quality streaming on computer devices; and the Hulu Subscriptions did not have the characteristics as promised by Defendants. CLASS ACTION COMPLAINT 11 ?24 1-25 27 28 FIFTH CAUSE OF ACTION (Violation Of New York?s General Business Law 349) 54. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 55. Plaintiff Stevens brings this claim individually and on behalf of the Members of the proposed New York Subclass against Defendants. 56. New York?s General Business Law 349 prohibits deceptive acts or practices in the conduct of any business, trade, or commerce. 57. In its sale of goods throughout the State of New York, Defendants conduct business and trade within the meaning and intendment of New York?s General Business Law 349. 58. Plaintiff Stevens and Members of the New York Subclass are consumers who purchased products from Defendants for their personal use. 59. By the acts and conduct alleged herein, Defendants have engaged in deceptive, unfair. and misleading acts and practices. which include. without limitation. misrepresenting that the Hulu Subscriptions would provide high quality streaming on computer devices. 60. The foregoing deceptive acts and practices were directed at consumers. 61. The foregoing deceptive acts and practices are misleading in a material way because they fundamentally misrepresent the characteristics of the Hulu Subscriptions to induce consumers to purchase same. 62. By reason of this conduct, Defendants engaged in deceptive conduct in violation of New York?s General Business Law. 63. Defendants? action are the direct, foreseeable, and proximate cause of the damages that Plaintiff Stevens and Members of the New York Subclass have sustained from having paid for and used Defendant?s products. 64. As a result of Defendants? violations, Plaintiff Stevens and Members of the New York Subclass have suffered damages because: they would not have purchased the Hulu Subscriptions on the same terms if the true facts were known about the product; they paid a price premium for the Hulu subscriptions due to Defendants? promises that they would provide CLASS ACTION COMPLAINT 12 high quality streaming on computer devices; and the Hulu Subscriptions did not have the characteristics as promised by Defendants. 65. On behalf of himself and other Members of the New York Subclass, Plaintiff Stevens seeks to recover his actual damages or fifty dollars, whichever is greater, three times actual damages, and reasonable attomeys? fees. SIXTH CAUSE OF ACTION (Violation Of New York?s General Business Law 350) 66. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 67. Plaintiff Stevens brings this claim individually and on behalf of the Members of the proposed New York Subclass against Defendants. 68. New York?s General Business Law 350 prohibits false advertising in the conduct of any business, trade, or commerce. 69. Pursuant to said statute, false advertising is defined as ?advertising, including labeling, ofa commodity if such advertising is misleading in a material respect.? 70. Based on the foregoing, Defendants have engaged in consumer-oriented conduct that is deceptive or misleading in a material way which constitutes false advertising in violation of Section 350 of New York?s General Business Law. 71. Defendants? false, misleading, and deceptive statements and representations of fact were and are directed to consumers. 72. Defendants? false, misleading, and deceptive statements and representations of fact were and are likely to mislead a reasonable consumer acting reasonably under the circumstances. 73. Defendants? false, misleading, and deceptive statements and representations of fact have resulted in consumer injury or harm to the public interest. 74. As a result of Defendants? false, misleading, and deceptive statements and representation of fact, Plaintiff Stevens and the New York Subclass have suffered and continue to suffer economic injury. CLASS ACTION l3 result of Defendants? Violations, Plaintiff Stevens and Members of the New York Subclass have suffered damages due to said violation because: they would not have purchased the Hulu Subscriptions on the same terms if the true facts were known about the product they paid a price premium for the Hulu Subscriptions due to Defendants? promises that they would provide high quality streaming on computer devices; and the Hulu Subscriptions did not have the characteristics as promised by Defendants. 76. On behalf of himself and other Members of the New York Subclass, Plaintiff Stevens seeks to recover his actual damages or ?ve hundred dollars, whichever is greater, three times actual damages, and reasonable attorneys? fees. SEVENTH CAUSE OF ACTION (Unjust Enrichment) 77. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 78. Plaintiffs bring this claim individually and on behalf of the Members of the proposed Nationwide Class and Subclasses against Defendants. 79. Plaintiffs and Class Members conferred bene?ts on Defendants by purchasing the Hulu Subscriptions. 80. Defendants have been unjustly enriched in retaining the revenues derived from Plaintiff and Class member?s purchases of Hulu Subscriptions. Retention of those moneys under these circumstances is unjust and inequitable because Defendants misrepresented that the Hulu would feature high quality streaming on computer devices. This misrepresentation caused injuries to Plaintiff and Class Members. because they would not have purchased Hulu Subscriptions if the true facts were known. 81. Because Defendant?s retention of the non-gratuitous benefits conferred on them by Plaintiffs and Class Members is unjust and inequitable. Defendant must pay restitution to Plaintiffs and Class Members for its unjust enrichment, as ordered by the Court. CLASS ACTION 14 EIGHTH CAUSE OF ACTION (Fraud) 82. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 83. Plaintiffs bring this claim individually and on behalf of the Members of the proposed Nationwide Class and Subclasses against Defendants. 84. As discussed above, Defendants provided Plaintiffs and Class members with false or misleading material information and failed to disclose material facts about the Hulu Subscriptions computer streaming quality. These misrepresentations and omissions were made with knowledge of their falsehood. 85. The misrepresentations and omissions made by Defendants, upon which Plaintiffs and Class members reasonably and justi?ably relied, were intended to induce and actually induced Plaintiffs and Class members to purchase the Hulu Subscriptions. 86. The fraudulent actions of Defendants caused damage to Plaintiffs, Class members, and Subclass members who are entitled to damages and other legal and equitable relief as a result. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, individually and on behalf of others similarly situated, seek judgment against Defendants, as follows: a) For an order certifying the certifying the Nationwide Class, the California Subclass, and the New York Subclass under Cal. Code Civ. Proc. ?382 naming Plaintiff Atkinson as a representative of the Nationwide Class, and the California Subclass, Plaintiff Stevens as a representative of the Nationwide Class, and the New York Subclass, and Plaintiffs? attorneys as Class Counsel to represent the Nationwide Class, California Subclass, and New York Subclass Members; b) For an order ?nding in favor of Plaintiffs, the Nationwide Class, the California Subclass, and the New York Subclass on all counts asserted herein; c) For compensatory, statutory, and punitive damages in amounts to be determined by the Court and/or Jury; CLASS ACTION COMPLAINT 15 For prejudgment interest on all amounts awarded; e) For an order of restitution and all other forms of equitable monetary relief; f) For injunctive relief as pleaded or as the Court may deem proper; and g) For an order awarding Plaintiffs, the Nationwide Class, the California Subclass, and the New York Subclass their reasonable attorneys? fees, expenses, and costs of suit. JURY DEMAND Plaintiffs demand a trial by jury on all causes of action and issues so triable. Dated: April 13, 2020 BURSOR FISHER, P.A. By: ?Frederick J. 111 L. Timothy Fisher (State Bar No. 191626) Frederick J. 111 (State Bar No. 320783) Brittany S. Scott (State Bar No. 327132) 1990 North California Blvd., Suite 940 Walnut Creek, CA 94596 Telephone: (925) 300-4455 Facsimile: (925) 407-2700 E?mail: bscott@bursor.com BURSOR FISHER, P.A. Philip L. Fraietta (Pro Hac Vice Forthcoming) 888 Seventh Avenue New York, NY 10019 Telephone: (646) 837-7150 Facsimile: (212) 989?9163 E-Mail: pfraietta@bursor.com Attorneys for Plaintiffs CLASS ACTION 16 CLRA Venue Declaration Pursuant to California Civil Code Section 1780(d) 1, Frederick J. declare as follows: 1. I am an attorney at law licensed to practice in the State of California and I am member of the bar of this Court. 1 am a Partner at Bursor Fisher, P.A., counsel of record for Plaintiffs in this action. I have personal knowledge of the facts set forth in this declaration and, if called as a witness, I could and would competently testify thereto under oath. 2. The Complaint ?led in this action is ?led in the proper place for trial under Civil Code Section 1780(d) in that the parties? contract designates ?the courts located in the Los Angeles County of the State of California" the proper venue for this action. I declare under the penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct and that this declaration was executed at Walnut Creek, California this 13th day of April, 2020. Frederick J. Ill CLASS ACTION l7 EXHIBIT A BURSOR FISHER 1990 N. CALIFORNIA BLVD FREDERICK J. Ill SUITE 940 Tel:925.300.4455 WALNUT CREEK, CA 94596 Fax: 925.407.2700 April 3, 2020 Via Certi?ed Mail - Return Receipt Requested Fox-Hulu Holdings, Inc. Walt Disney Direct-to-Consumer 500 S. Buena Vista St. 500 S. Buena Vista St. Burbank, CA 91521 Burbank, CA 91521 Fox-Hulu Holdings, Inc. Walt Disney Direct-to Consumer c/o Corporation System 818 W. 7?h St, Ste. 940 Los Angeles, CA 90017 Re: Notice and Demand Letter Pursuant to UC. C. 2-313, 2?314, 2-60 New York General Business Law 349?50; and California?s Consumers Legal Remedies Act, Cal. Civil Code 1750, et seq; and all other applicable consumer protection statutes To Whom it May Concern: This letter serves as a preliminary notice and demand for corrective action by Fox- Holdings, Inc. and Walt Disney Direct-to-Consumer lntemational (collectively ?Hulu"), pursuant to U.C.C. concerning breaches of express and implied warranties on behalf of our clients, Kyle Stevens and Kim Atkinson, and a class of all similarly situated subscribers of Hulu?s steaming services, including the Basic Plan, Premium Plan, Basic Live TV, and Premium Live TV (the ?Hulu Subscriptions?). This letter also serves as notice of violation of New York General Business Laws 349-50 and California?s Consumers Legal Remedies Act. Cal. Civil Code 1750, et seq., including subsections 1770(a)(5), (7), and (9), and all other applicable federal and state laws. Should we not receive a response to our offer of resolution set forth below, this letter provides statutory notice of our intent to ?le a class action lawsuit. Our clients purchased certain of the above-listed Hulu Subscriptions, which Hulu repeatedly misrepresented and warranted included ?high quality streaming? on computer devices. Our clients understood this to mean that their streaming service would high quality regardless of how they accessed the service. However, Hulu has been throttling streaming services to consumers who access Hulu using computers. Accordingly, Hulu violated the California CLRA, New York GBL, and breached express and implied warranties made to our clients and the Class. See U.C.C. 2-313, 2-314, 2-607; New York General Business Laws 349-50; and California Civil Code 1750, et seq. Our clients and similarly situated consumers were injured and damaged by purchasing the Hulu Subscriptions. PAGE 2 On behalf of our clients and the Class, we hereby demand that Hulu immediately (1) cease and desist throttling streaming quality for consumers accessing Hulu by computer and (2) make full restitution to all Hulu subscribers of all purchase money obtained from sales thereof. We also demand that Hulu preserve all documents and other evidence which refer or relate to any of the above-described practices during the applicable class periods, including electronically stored information and including, but not limited to, the following: 1. All documents concerning the source code and code revision history (129. git revision) for Hulu?s streaming services; 2. All tests of the Hulu code and its component parts, whether performed by Hulu or any other third-party entities; 3. All documents concerning the pricing, advertising, marketing, and/or sale of Hulu Subscriptions; 4. All communications with customers involving complaints or comments concerning the Hulu Subscriptions; and 5. All documents concerning the total revenue derived from sales of the Hulu Subscriptions. If you contend that any statement in this letter is inaccurate in any respect, please provide us with your contentions and supporting documents immediately upon receipt of this letter. Please contact me right away if you wish to discuss an appropriate way to remedy this matter. If I do not hear from you I will take this as an indication that you are not interested in discussing this offer of resolution. Very truly yours, Frederick J.