Preview
778793.6
18C0V328915
Santa Clara — Civil
Laura L. Ho (SBN 173179)
lho@gbdhlegal.com
James Kan (SBN 240749)
jkan@gbdhlegal.com
Katharine L. Fisher (SBN 305413)
kfisher@gbdhlegal.com
GOLDSTEIN, BORGEN, DARDARIAN & HO
300 Lakeside Drive, Suite 1000
Oakland, CA 94612
Tel: (510) 763-9800
Fax: (510) 835-1417
Julian Hammond (SBN 268489)
jhammond@hammondlawpc.com
Ari Cherniak (SBN 290071)
acherniak@hammondlawpc.com
Polina Brandler (SBN 269086)
pbrandler@hammondlawpc.com
HAMMONDLAW, P.C.
1829 Reisterstown Rd., Suite 410
Baltimore, MD 21208
Tel: (310) 601-6766
Fax: (310) 295-2385
Attorneys for Plaintiffs and Putative Class
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 5/20/2020 4:20 PM
Reviewed By: R. Walker
Case #18CV328915
Envelope: 4358614
SUPERIOR COURT OF TH
E STATE OF CALIFORNIA
FOR THE COUNTY OF SANTA CLARA
ABDULLAH UZAIR, ANGEL CHAVEZ,
NICHOLAS JOEL LUSKIN, and SALVADOR DE
LA O, individually and on behalf of all others
similarly situated,
Plaintiffs,
vs.
GOOGLE, LLC., a California Limited Liability
Company,
Defendant.
Case No.: 1-18-CV-328915
FIRST AMENDED CLASS ACTION
COMPLAINT FOR
(1) UCL VIOLATIONS (CAL. BUS. PROF.
CODE §§ 17200-17204);
INJUNCTIVE RELIEF AND
RESTITUTION (CAL. BUS. PROF.
CODE § 17535);
VIOLATION OF CONSUMER LEGAL
REMEDIES ACT (CAL. CIV. CODE §§
1750 ET SEQ.);
COMMON COUNT FOR MONEY
HAD AND RECEIVED; AND
DECLARATORY RELIEF (CAL.
CODE CIV. PROC. § 1060).
Jury Trial Demanded
Q)
(3)
(4)
6)
FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
Plaintiffs Abdullah Uzair, Angel Chavez, Nicholas Joel Luskin, and Salvador De La O
(“Plaintiffs”), on behalf of themselves and all others similarly situated, complain and allege as follows:
L OVERVIEW OF CLAIMS
le This is a class action, under California Code of Civil Procedure section 382, seeking
restitutionary, injunctive, declaratory and/or other equitable relief, and reasonable attorneys’ fees and
costs under California Business and Professions Code (hereinafter “Cal. Bus. Prof. Code”)
sections 17535 and 17200, et seg.; California Code of Civil Procedure (hereinafter “Cal. Code Civ.
Proc.”) sections 1060, 1021.5; and California Civil Code (“Cal. Civ. Code”) § 1780, on behalf of
Plaintiffs and all other similarly situated individuals in California who purchased a subscription from
Google, LLC (hereinafter “Google” or “Defendant”) billed through the Google Play Store (hereinafter
“Class Members”) from the date four years prior to the filing of the original complaint to the present
(hereinafter “Class Period”).' Plaintiffs and Class Members are consumers for purposes of California
Business and Professions Code sections 17600-17606 and California Civil Code sections 1750-1784.
2. During the Class Period, Google made, and continues to make, automatic renewal or
continuous service offers to consumers in and throughout California, and charged, and continues to
charge, Plaintiffs’ and Class Members’ credit or debit cards, or third party payment account
(hereinafter “payment method”), without first obtaining Plaintiffs’ and Class Members’ affirmative
consent to the agreement containing the automatic renewal offer terms or continuous service offer
terms in violation of Cal. Bus. Prof. Code § 17602(a). Moreover, Google, at the time of making the
automatic renewal or continuous service offer, failed to present the automatic renewal offer terms or
continuous service offer terms in a clear and conspicuous manner and in visual proximity to the request
for consent to the offer before the subscription or purchasing agreement was fulfilled. Google also
failed to provide an acknowledgment that includes the automatic renewal or continuous service offer
' The Court’s Feb. 1, 2019 Order sustained Defendant’s Demurrer to Plaintiffs’ first cause of action in
the Complaint, under California’s Automatic Renewal Law, Cal. Bus. & Prof. Code §§ 17602, 17603,
17604, without leave to amend. Thus, Plaintiff does not re-allege that cause of action in this First
Amended Complaint. However, Plaintiffs expressly reserves the right to appeal the Court’s decision as
to that cause of action. See Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Servs.
Grp., Inc., 171 Cal. App. 4th 35 (2009).
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
terms, cancellation policy, and information regarding how to cancel in a manner that is capable of
being retained by the consumer. As a result, all goods, wares, merchandise, or products sent to
Plaintiffs and Class Members under the automatic renewal or continuous service agreement are
deemed to be unconditional gifts pursuant to Cal. Bus. Prof. Code § 17603. Moreover, Class Members
complained to Google that they did not know their subscriptions would be automatically renewed, yet
Google did nothing to correct those business practices.
3. As a result of the above, Plaintiffs, on behalf of themselves and Class Members, seek
restitution, declaratory relief, injunctive relief, prejudgment interest, and reasonable attorneys’ fees and
costs pursuant to Cal. Bus. Prof. Code §§ 17203, 17204, and 17535, Cal. Code Civ. Proc. §§ 1060,
1021.5, and Cal. Civ. Code § 1780.
4. The “Class Period” is designated as the period from four years prior to the filing of the
original complaint through to the trial date. Defendant’s violations of California’s Business and
Professions Code and unfair competition laws, as described more fully below, have been ongoing since
the beginning of the Class Period, and are continuing at present.
Il. JURISDICTION
5. This Court has jurisdiction over the claims for restitution, injunctive relief, and
declaratory relief arising from Defendant’s unlawful business practices, under Cal. Bus. Prof. Code §§
17203, 17204, and 17535, and Cal. Code Civ. Proc. § 1060.
6. This Court has jurisdiction over the claims for violation of the Consumer Legal
Remedies Act under California Civil Code § 1780.
7. This Court has jurisdiction over Common Counts such as Money Had and Received.
Til. VENUE
8. Defendant is located in Santa Clara County, California. As such, venue as to Defendant
is proper in the County of Santa Clara pursuant to California Code of Civil Procedure § 395(a).
IV. PARTIES
9. Plaintiff Abdullah Uzair resides in California and is a consumer for purposes of Cal.
Bus. Prof. Code § 17601(d). On or about March 16, 2016, Plaintiff purchased a family plan
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
subscription to Google Play Music from Defendant. Because Defendant failed to clearly and
conspicuously disclose the automatic renewal offer terms in visual proximity to the request for
Plaintiff's consent to the offer, Plaintiff was not informed prior to purchase that the subscription would
renew automatically until cancelled or that any cancellation would not be effective until the next
period. Had Defendant made these disclosures, Plaintiff would not have subscribed to Google Play
Music at the time he did so. Since March 16, 2016, Defendant has charged and continues to charge
Plaintiff $14.99 per month on a recurring basis for the Google Play Music subscription, utilizing the
Payment Method associated with Plaintiff's Google Play Account.
10. Plaintiff Angel Chavez resides in California and is a consumer for purposes of Cal. Bus.
Prof. Code § 17601(d). In or around May 2016, Plaintiff signed up for a free trial to Google Play
Music from Defendant. As soon as the free trial ended, Defendant began charging him monthly for
Google Play Music on an automatically renewing basis, starting at $9.99/month. Because Defendant
failed to clearly and conspicuously disclose the automatic renewal offer terms in visual proximity to
the request for Plaintiffs consent to the offer prior to the expiration of the free trial, Plaintiff was not
informed prior to purchase that the subscription would renew automatically until cancelled or that any
cancellation would not be effective until the next period. Had Defendant made these disclosures,
Plaintiff would not have subscribed to Google Play Music at the time he did so.
11. Plaintiff Nicholas Joel Luskin resides in California and is a consumer for purposes of
Cal. Bus. Prof. Code § 17601(d). In December 2019, Plaintiff signed up for a one-week free trial to
Disney+ from Defendant. As soon as the free trial ended, Defendant began charging him monthly for
Disney+ on an automatically renewing basis, starting at $6.99/month. Because Defendant failed to
clearly and conspicuously disclose the automatic renewal offer terms in visual proximity to the request
for Plaintiff's consent to the offer prior to the expiration of the free trial, Plaintiff was not informed
prior to purchase that the subscription would renew automatically until cancelled or that any
cancellation would not be effective until the next period. Had Defendant made these disclosures,
Plaintiff would not have subscribed to Disney+ at the time he did so. Since December 2019,
Defendant has charged and continues to charge Plaintiff on a monthly recurring basis for the Disney+
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
subscription, utilizing the Payment Method associated with Plaintiff's Google Play Account.
12. Plaintiff Salvador De La O resides in California and is a consumer for purposes of Cal.
Bus. Prof. Code § 17601(d). In or around July 2014, Plaintiff signed up for a free trial to Google Play
music from Defendant. As soon as the free trial ended, Defendant began charging him on a monthly
basis for Google Play Music on an automatically renewing basis. Because Defendant failed to clearly
and conspicuously disclose the automatic renewal offer terms in visual proximity to the request for
Plaintiff's consent to the offer prior to the expiration of the free trial, Plaintiff was not informed prior
to purchase that the subscription would renew automatically until cancelled or that any cancellation
would not be effective until the next period. Had Defendant made these disclosures, Plaintiff would
not have subscribed to Google Play Music at the time he did so. Since 2014, Defendant has charged
Plaintiff on a monthly recurring basis for the Google Play Music subscription, utilizing the Payment
Method associated with Plaintiff's Google Play Account.
13. Defendant Google, LLC is a California corporation with its principal place of business
located at 1600 Amphitheatre Parkway, Mountain View, California. The policies, practices, and
unlawful conduct complained of herein were formulated, implemented, and maintained, in whole or in
substantial part, at that address.
14. All of Plaintiffs’ claims stated herein are asserted against Defendant and any of its
predecessors, successors, and/or assigns that do, or have done, business, with Class Members in
California during the Class Period.
Ve FACTUAL BACKGROUND
A. California Business Professions Code §§ 17600-17606
155 On December 1, 2010, §§ 17600-17606 of Article 9, of Chapter 1 of Part 3, of Division
7 of the Cal. Bus. Prof. Code came into effect. The stated intent of the Legislature of this Article was
to end the practice of ongoing charging of consumer payment methods without the consumers’ explicit
consent for ongoing shipments of a product or ongoing deliveries of service: See, § 17600 of the Cal.
Bus. Prof. Code.
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
16. Cal. Bus. Prof. Code § 17602(a) makes it unlawful for any business making an
automatic renewal or continuous service offer to a consumer in this state to do any of the following:
a. Fail to present the automatic renewal offer terms or continuous service offer
terms in a clear and conspicuous manner before the subscription or purchasing agreement is fulfilled
and in visual proximity, or in the case of an offer conveyed by voice, in temporal proximity, to the
request for consent to the offer.
b. To charge the consumer’s credit or debit card or the consumer’s account with a
third party for an automatic renewal or continuous service without first obtaining the consumer’s
affirmative consent to the agreement containing the automatic renewal offer terms or continuous
service offer terms.
c. Fail to provide an acknowledgment that includes the automatic renewal or
continuous service offer terms, cancellation policy, and information regarding how to cancel in a
manner that is capable of being retained by the consumer. If the offer includes a free trial, the business
shall also disclose in the acknowledgment how to cancel and allow the consumer to cancel before the
consumer pays for the goods or services.
17. Cal. Bus. Prof. Code § 17602(b) provides that “[a] business making automatic renewal
or continuous service offers shall provide a toll-free telephone number, electronic mail address, a
postal address only when the seller directly bills the consumer, or another cost-effective, timely, and
easy-to-use mechanism for cancellation that shall be described in the acknowledgment specified in
paragraph (3) of subdivision (a).”
18. Cal. Bus. Prof. Code § 17601(a) defines the term “Automatic renewal” as a plan or
arrangement in which a paid subscription or purchasing agreement is automatically renewed at the end
of a definite term for a subsequent term.
19. Cal. Bus. Prof. Code § 17601(e) defines the term “Continuous service” as a plan or
arrangement in which a subscription or purchasing agreement continues until the consumer cancels the
service.
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20. Cal. Bus. Prof. Code § 17601(b) defines the term “Automatic renewal offer terms” as
“the following clear and conspicuous disclosures: (1) That the subscription or purchasing agreement
will continue until the consumer cancels. (2) The description of the cancellation policy that applies to
the offer. (3) The recurring charges that will be charged to the consumer’s credit or debit card or
payment account with a third party as part of the automatic renewal plan or arrangement, and that the
amount of the charge may change, if that is the case, and the amount to which the charge will change,
if known. (4) The length of the automatic renewal term or that the service is continuous, unless the
length of the term is chosen by the consumer. (5) The minimum purchase obligation, if any.”
21. Pursuant to § 17601(c), “clear and conspicuous” or “clearly and conspicuously” means
“in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of
the same size, or set off from the surrounding text of the same size by symbols or other marks, in a
manner that clearly calls attention to the language.”
22. Section 17603 of the Cal. Bus. Prof. Code provides: “In any case in which a business
sends any goods, wares, merchandise, or products to a consumer, under a continuous service
agreement or automatic renewal of a purchase, without first obtaining the consumer’s affirmative
consent as described in Section 17602, the goods, wares, merchandise, or products shall for all
purposes be deemed an unconditional gift to the consumer, who may use or dispose of the same in any
manner he or she sees fit without any obligation whatsoever on the consumer’s part to the business,
including, but not limited to, bearing the cost of, or responsibility for, shipping any goods, wares,
merchandise, or products to the business.”
B. Defendant’s Business
23. Defendant operates and, at all times during the Class Period, has done business
throughout California. Defendant designs, manufactures, and markets internet-related services and
products. Defendant develops and operates “Google Play,” through which Defendant sells and
delivers digital products and applications (hereinafter “Apps” or “App”).
24. An App is an abbreviation for the term “application.” An application is a piece of
software or a software program that controls the functioning of hardware and directs its operation. An
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-3289151|| App is the mechanism, or software, that allowed and continues to allow Plaintiffs and Class Members
2]| to download and view digital products.
3 25. Google Play is the official App store for the Android operating system which allows
4]|| consumers to browse and download applications developed with the Android software development
5|| kit. Through the Google Play Store, Defendant publishes its own and third-party developers’
6|| applications.
7 26. Throughout the Class Period, Defendant, through its Google Play Store, offered and
8|| continues to offer consumers in California (including Plaintiffs and Class Members) digital products
9|| (including, but not limited to, songs, movies, television shows, magazines, newspapers, periodicals,
10|] and other digital products), using a plan or arrangement in which a paid subscription or purchasing
11]| agreement is automatically renewed at the end of a definite term for a subsequent term or continues
12]| until the consumer cancels (“In-App subscriptions”). As such, Defendant’s In-App subscriptions were,
13 || and are, “automatic renewal” and/or “continuous service” plans for the purposes of Cal. Bus. Prof.
14|| Code §§ 17601(a), (e). During the Class Period, Plaintiffs and Class Members accepted Defendant’s
15 || offers for In-App subscriptions, after which acceptance Defendant delivered, and continues to deliver,
16]| digital products, and Defendant charged, and continues to charge, Plaintiffs’ and Class Members’
17|| payment method for the digital products.
18 27. Defendant’s own applications offering In-App subscriptions include, for example,
19 || Google Play Music. Third-Party Applications include, for example, HBO Now. To make purchases
20]| through Google Play, whether for Google’s or Third-Parties’ applications, consumers use Google
21]| Play’s payment system, formerly known as Google Wallets and currently called Google Payments. On
22]| information and belief, all products offered through Defendant’s in-app subscriptions are capable of
23 || being downloaded, stored, printed, or otherwise introduced into the physical world.
24 28. Inall instances relevant to this action, Defendant is an obligor. With regards to the
25 || sales of the In-App subscriptions at issue, Defendant is the business making the offer. Defendant
26]| enrolls subscribers in, processes payment for, and delivers the subscriptions. Defendant, and
27|| Defendant alone, charged, and continues to charge, Plaintiffs’ and Class Members’ payment method,
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915
778793.6778793.6
and indeed the publisher (or App developer) never received, and continues not to receive, Plaintiffs’
and Class Members’ payment method information.
Cc. Defendant’s Legal Agreements
29. In order to make purchases from Defendant’s online store, the “Google Play Store,”
Plaintiffs and Class Members must have a Google Account with a Google ID and password and are
required to set up a Google Payments Account and provide Defendant with their payment method
information. During this process, Plaintiff and Class Members were also required, and continue to be
required, to state that they agree to the Google Play Terms of Service and the Google Payments Terms
of Service (“Legal Agreements”), in addition to other legal agreements, either expressly or by
accepting another legal agreement. Defendant’s February 5, 2018 Google Play Terms of Service and
April 18, 2018 Google Payments Terms of Service are attached hereto as Exhibits A and B,
respectively.
30. | On information and belief, Google has published at least ten versions of its Google Play
Terms of Service, dated: August 15, 2012; November 20, 2013; April 8, 2014; December 10, 2014;
December 9, 2015; July 27, 2016; January 27, 2017; June 16, 2017; December 18, 2017; and February
5, 2018. As viewed on a computer, the Google Play Terms of Service dated February 5, 2018 are 10
pages long. See Exh.A.2. As viewed on a typical mobile device, the same Terms of Service cover 21
screens. See Exh. A.1. Prior versions of the Google Play Terms of Service effective during the class
period were up to 16 pages, or approximately 34 screens, long (e.g., December 9, 2015).
31. | On information and belief, prior to December 9, 2015, the Google Play Terms of
Service required consumers to accept the Google Wallet Terms of Service, and beginning December 9,
2015, consumers were required to accept the Google Payments Terms of Service. On information and
belief, Defendant published two versions of the Google Wallet Terms of Service that applied during
the class period, dated April 24, 2014 and October 29, 2014. Then, beginning June 1, 2015, Defendant
began publishing the Google Payments Terms of Service and has since published at least six additional
versions, dated: October 14, 2016; July 27, 2017; August 31, 2017; August 31, 2017; February 20,
2018; April 18, 2018; and May 1, 2019.
8
FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-3289151 32. As shown in Exhibit B, the Google Payments Terms of Service dated April 18, 2018
2] span ninety-nine screens on a typical mobile device (Exh. B.1) and are 21-pages long on a computer
3|| screen (Exh. B.2). The Google Payments Terms of Service are divided into sections and subsections
4|| by headings. The section headings are in bold letters and the subsection headings are in non-bolded,
5|| lowercase letters. In some paragraphs, Defendant uses all capital letters to draw the attention to the
6|| importance to the language contained therein. Throughout the class period, the text of the Google
7\| Payment Terms of Service has been and is in small font and is difficult to read.
8 33. On information and belief, consumers accept the Google Play Terms of Service when
9|| first using the Google Play Store App and then when the Terms are updated if making a new purchase.
10|| Consumers do not agree to the Google Play Terms of Service prior to each and every purchase. When
11 || Google Play offers consumers an In-App Subscription, small text appears at the bottom of the screen
12]| which states “By tapping ‘subscribe,’ you agree to the Terms of Service — Android (US).” On
13 || information and belief, this hyperlink opens the Google Payments Terms of Service.
14 34. Paragraph 3.5 of the Google Payment Terms of Service (screens 29-30 of Exh. B.1; or
15]|] pages 6-7 of Exh. B.2), under the section heading “Subscriptions/Recurring Transactions Purchases
16] (which is not bolded), provides:
17 In the event that the Processing Service offers you the ability to
pay for subscriptions, your subscription will start when you click
18 “Accept & buy” on a subscription purchase. This is a recurring
19 billing transaction. Unless otherwise stated, your subscription and
the relevant billing authorization will continue indefinitely until
20 cancelled by you.
21 By clicking “Accept & buy”(or equivalent phrase), you authorize
the applicable Seller to bill your chosen Payment Instrument each
22 designated billing period for the subscription at the Purchase
Amount. You further authorize the applicable Seller to charge the
Purchase Amount to the alternate Payment Instrument, if you have
24 selected one in your Google Payments Account, in the event that
the Seller is unable to charge to your designated Payment
25 Instrument for any reason.
26 The Purchase Amount will continue to be charged to your Payment
Instrument or alternate Payment Instrument (if applicable) each
27 billing period, until you cancel your subscription, unless as
28 otherwise stated in the terms and conditions. The billing rate is
subject to change by the Seller during the subscription period.
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915
778793.6778793.6
Your Payment Instrument will be billed each period based on the
date of the subscription purchase.
You may cancel a subscription at any time by following the
process described here, but the cancellation will not become
effective until the end of the current billing period. You will not
receive a refund for the current billing period. You will continue to
be able to access the relevant subscription for the remainder of the
current billing period.
We reserve the right to issue refunds or credits at our sole
discretion. If we issue a refund or credit, we are under no
obligation to issue the same or similar refund in the future.
35. The Google Play Terms of Service similarly describe Google’s cancellation policy in
the section titled “Subscriptions,” providing:
(b) Cancellations. You may cancel a subscription at any time
before the end of the applicable billing period as described in the
Help Center, and the cancellation will apply to the next period.
For example, if you purchase a monthly subscription, you may
cancel that subscription at any time during any month of the
subscription, and the subscription will be cancelled as of the
following month. You will not receive a refund for the current
billing period, except as otherwise provided in Google Play's
Refund Policy (for example where Content is defective).
See Exh. A.1 (screen 11 of 21); Exh. A.2 (page 5 of 10).
36. This cancellation policy and minimum purchase obligation applied to Google Play
subscription purchases throughout the Class Period and was described in substantially similar language
in prior and subsequent versions of the Google Payment Terms of Service and the Google Play Terms
of Service as that excerpted above.
D. Defendant Fails To Present The Offer Terms In A Clear And Conspicuous Manner In
Visual Proximity to the Request for Consent
37. Throughout the Class Period, Defendant’s “subscription flow,” or the process by which
Plaintiffs and Class Members are presented with and then accept an offer for an automatically
renewing subscription, failed to clearly and conspicuously disclose the offer terms because Defendant
failed and continues to fail to describe that the subscription will continue until cancelled, the
cancellation policy that applies to the offer, and the minimum purchase obligation in a clear and
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
conspicuous manner in visual proximity to Defendant’s request for consent to the offer, before the
subscription or purchasing agreement was, and is fulfilled.
38. Defendant made, and continues to make, automatic renewal offers to consumers in
California, including Plaintiffs and Class Members, using the word “subscribe.” On information and
belief, Defendant offers subscriptions for some products directly through its Google Play Store. Once
consumers find the product in the Store, Defendant presents the consumer the option to “subscribe” by
clicking a “Subscribe” or a similar button (hereinafter the “subscribe button”).
39. | Defendant also makes offers for subscriptions to products through its own or Third
Party’s Applications. Consumers locate the product’s Application in the Google Play Store, select the
option to “Install” the Application, and then (possibly at a later date), open up the Application. Then,
within the Application, the consumer presses a “subscribe” button.
40. For subscriptions in which Defendant offers consumers the option to choose a
subscription length, when Plaintiffs and Class Members press the first “subscribe” button, Defendant
caused, and continues to cause, a Purchase Options pop-up screen to appear. This screen displays the
subscription lengths and prices offered, and the consumer selects the desired subscription.
Al. After Plaintiffs and Class Members selected, and continue to select, their desired
subscription period on the Purchase Options screen, if applicable, Defendant caused, and continues to
cause, a Google Play pop up screen to appear that summarizes Defendant’s subscription offer. This
pop up screen does not disclose that the subscription will automatically renew until the consumer
affirmatively acts to cancel the subscription. Defendant further fails to disclose that any cancellation is
not effective until the end of the current billing period. Thus, Defendant fails to disclose that the
agreement will continue until cancelled, to describe the cancellation policy that applies to the offer,
and fails to disclose that there is a minimum purchase obligation because the consumer is required to
purchase the current subscription, at a minimum.
42. At the bottom right corner of the offer summary pop-up screen is a “subscribe” button,
which on information and belief is generally blue or green, with white, all-capitalized text. The
consumer may select the “subscribe” button without viewing any additional information. Once the
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
consumer selects “subscribe,” they were, and are, required to authenticate their Account Information,
which they did, and continue to do, by entering their Google Play ID and password, and pressing
“Confirm,” after which Defendant charged, and continues to charge, their payment method (unless the
offer is subject to a free trial, in which case Defendant charged, and continues to charge, their payment
method at the end of the free trial).
43. However, if, prior to clicking “subscribe,” the consumer notices and then selects the
small down arrow on the screen, the offer summary screen expands. On this expanded summary
screen, Defendant provides hyperlinks and additional information. This expanded summary screen did
not and does not disclose that the subscription is automatically renewing and will continued until
cancelled. The expanded summary screen did not and does not disclose that the cancellation is not
effective until the next billing period or that the consumer is required to purchase the current
subscription at a minimum.
44. Sometime since the beginning of the class period, Defendant started adding a statement
to the bottom of the offer summary screen in smaller and lighter font than the rest of the text on the
screen that reads: “By tapping “Subscribe”, you agree to the Terms of Service — Android (US).” On
information and belief, by clicking the “Terms of Service — Android (US)” hyperlink, consumers are
taken to the Google Payments Terms of Service described above. If the consumer proceeds to this
link, they can scroll for approximately 29-30 screens out of 99 total screens to discover that “This is a
recurring billing transaction. Unless otherwise stated, your subscription and the relevant billing
authorization will continue indefinitely until cancelled by you” and that “You may cancel a
subscription at any time by following the process described here, but the cancellation will not become
effective until the end of the current billing period. You will not receive a refund for the current billing
period.” See Exh. B.1. These disclosures are neither clear and conspicuous nor in visual proximity to
Defendant’s request for consent to the offer.
45. Asaresult of the above, and in violation of Cal. Bus. Prof. Code § 17602(a)(1),
Defendant made, and continues to make, an automatic renewal or continuous service offer to
consumers, including Plaintiffs and Class Members in California, and failed, and continues to fail, to
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous
manner in visual proximity to the request for consent to the offer, before the subscription or purchasing
agreement was, and is fulfilled.
46. | Consumers have been and are misled by Defendant’s failure to clearly and
conspicuously disclose the recurring nature of the subscription and that purchased subscriptions cannot
be cancelled. Consumers have complained to Defendant about its unlawful, unfair, and deceptive acts,
but Defendant has nonetheless failed and continues to fail to remedy them.
E. Legal Agreements Do Not Contain the Automatic Renewal Offer Terms
47. In addition, the Legal Agreements did not, and do not, contain the automatic renewal
offer terms as defined by Cal. Bus. Prof. Code § 17601(b)(1)-(5), in so far as the Legal Agreements do
not state (1) the recurring charges that will be charged to the payment method information as part of
the automatic renewal plan or arrangement; (2) the length of the automatic renewal term or that the
service is continuous where the length of the term is not chosen by the consumer; or (3) that there is a
minimum purchase obligation.
48. In addition, the disclosures that Defendant did make — that are located on pages 6 and 7
(Exh. B.2) or screens 29-30 (Exh. B.1) of the Google Payment Terms of Service with a section heading
that was not bolded, and on page 5 of 10 (Exh. A.2) or screens 10-11 (Exh. A.1) of the Google Play
Terms of Service — were not, and continue to not be clear and conspicuous, as required by the statute.
The disclosures that Defendant made, and continues to make, are in the same color, size, and type of
font as the surrounding text, and not set off from the surrounding text of the same size by symbols or
other marks in a manner that clearly calls attention to the language. As such, the disclosures were not,
and continue to not be made in a clear and conspicuous manner as defined by Cal. Bus. Prof. Code §
17601(1)(c), and as required by Cal. Bus. Prof. Code § 17601(b) and 17602(a)(1).
49. Moreover, the Google Payment Terms of Service are not accessible when Defendant
makes the subscription offer except by clicking a small nondescript hyperlink and scrolling through
nearly 30 of 99 screens (and even this hyperlink was not present in the subscription flow for the entire
class period). The Google Play Terms of Service are not accessible within the subscription offer at all.
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
As such, the disclosures contained in these legal agreements are not in visual proximity to the
business’s request for the consumer’s consent to the offer pursuant to Cal. Bus. Prof. Code §
17602(a)(1).
F. Defendant Fails to Obtain Affirmative Consent to the Agreement Containing the Offer
Terms
50. As described above, Plaintiffs and Class Members accepted, and continue to accept,
Defendant’s subscription offers by pressing the “subscribe” button, authenticating their account
information, and then pressing “Confirm” at which time Defendant charged, and continues to charge,
their payment methods (unless the offer was subject to a free trial, in which case Defendant charges the
payment method at the end of the free trial).
51. | However, after making the In-App subscription offer, and prior to charging the
Plaintiffs’ and Class Members’ payment information, Defendant completely failed and continues to
fail to obtain Plaintiffs’ and Class Members’ affirmative consent to the agreement containing all of the
automatic renewal offer terms or continuous service offer terms. In fact, throughout the checkout
process for the In-App subscription there is no mechanism that required, and requires, Plaintiffs and
Class Members to expressly manifest their consent to an agreement containing all the automatic
renewal offer terms or continuous service offer terms.
52. Asaresult of the above, and in violation of Cal. Bus. Prof. Code § 17602(a)(2),
Defendant charged, and continues to charge, Plaintiffs’ and Class Members’ payment methods without
first obtaining Plaintiffs’ and Class Members’ affirmative consent to an agreement containing the
automatic renewal offer terms or continuous service offer terms. As a result, any goods, wares,
merchandise, or products, sent to Plaintiffs and Class Members under the subscription plan shall for all
purposes be deemed unconditional gifts to the consumers, who may use or dispose of the same in any
manner they see fit without any obligation whatsoever on the consumer’s part to the business,
including, but not limited to, bearing the cost of, or responsibility for, shipping any goods, wares,
merchandise, or products to the business.
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
G. Defendant Failed to Provide an Acknowledgment as Required by Cal. Bus. & Prof. Code
§ 17602(a)(3)
53: Furthermore, and in addition to the above, after Plaintiffs and Class Members
subscribed to one of Defendant’s In-App subscriptions, Defendant sent, and continues to send,
Plaintiffs and Class Members an email. But that e-mail failed, and continues to fail, to provide an
acknowledgement that includes the automatic renewal or continuous service offer terms, cancellation
policy, and information on how to cancel in a manner that is capable of being retained by Plaintiffs and
Class Members, in violation of Cal. Bus. Prof. Code § 17602(a)(3). Moreover, Defendant failed to
provide Plaintiffs and Class Members with an acknowledgement describing a timely, cost-effective,
and easy to use mechanism for cancellation as required by Cal. Bus. Prof. Code 17602(b), and
Defendant failed to allow Plaintiffs and Class Members to cancel before payment as required by §
17602(a)(3).
VI. CLASS ACTION ALLEGATIONS
54.
aintiffs bring this action, on behalf of themselves and all others similarly situated, as a
class action pursuant to Cal. Code Civ. Proc. § 382. The Class that Plaintiffs seek to represent is
composed of and defined as:
All persons in California who purchased a subscription from Google,
other than a subscription to Google Drive, billed through the Google
Play Store from the date four years prior to the filing of the original
Complaint to the present.
2): This action has been brought and may properly be maintained as a class action under
Cal. Code Civ. Proc. § 382 because there is a well-defined community of interest in the litigation, the
proposed class is easily ascertainable, and Plaintiffs are proper representatives of the Class:
a. Numerosity: The potential members of the Class as defined are so numerous and so
diversely located throughout California, that joinder of all the members of the Class is impracticable.
b. Commonality: There are questions of law and fact common to Plaintiffs and the Class
that predominate over any questions affecting only individual members of the Class. These common
questions of law and fact include, without limitation:
i. Whether Defendant failed to provide disclosures and acknowledgment required
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
to be provided under Cal. Bus. Prof. Code §§ 17602(a)-(b);
ii. Whether Defendant charged Plaintiffs’ and Class Members’ payment methods
for an automatic renewal or continuous service without first obtaining Plaintiffs’ and Class Members’
affirmative consent to the agreement containing the automatic renewal offer terms or continuous
service offer terms in violation of Cal. Bus. Prof. Code § 17602(a)(2);
iii. Whether Defendant’s legal agreements contain the automatic renewal offer
terms and/or continuous service offer terms as defined by Cal. Bus. Prof. Code § 17601;
iv. Whether Defendant failed to present the automatic renewal offer terms or
continuous service offer terms in a clear and conspicuous manner before the subscription or purchasing
agreement was fulfilled and in visual proximity, or in the case of an offer conveyed by voice, in
temporal proximity, to the request for consent to the offer in violation of Cal. Bus. Prof. Code §
17602(a)(1);
v. Whether Cal. Bus. Prof. Code § 17603 in conjunction with Cal. Bus. Prof. Code
§ 17200 et seq. provides for restitution of money paid by Class Members in circumstances where the
goods and services provided by Defendant is deemed an unconditional gift;
vi. Whether Plaintiffs and Class Members are entitled to restitution under Cal. Bus.
Prof. Code §§ 17200-17203;
vii. Whether Plaintiffs and Class Members are entitled to declaratory relief,
injunctive relief and/or restitution under Cal. Bus. Prof. Code § 17535, Cal. Civ. Code 1782, and/or
Cal. Code of Civil Procedure § 1060; and
viii. The proper measure of restitution owed to Class Members.
c. Typicality: Plaintiffs’ claims are typical of the claims of the Class. Both Plaintiffs and
Class Members were deprived of property rightly belonging to them, arising out of and caused by
Defendant’s common course of conduct in violation of law as alleged herein, in similar ways.
d. Adequacy of Representation: Plaintiffs are members of the Class and will fairly and
adequately represent and protect the interests of the Class Members. Plaintiffs’ interests do not
conflict with those of Class Members. Counsel who represent Plaintiffs are competent and
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
experienced in litigating large class actions, including those based on the ARL, and will devote
sufficient time and resources to the case and otherwise adequately represent the Class.
e. Superiority of Class Action: A class action is superior to other available means for the
fair and efficient adjudication of this controversy. Individual joinder of all Class Members is not
practicable, and questions of law and fact common to the Class predominate over any questions
affecting only individual members of the Class. Plaintiffs and Class Members have suffered or may
suffer loss in the future by reason of Defendant’s unlawful policies and/or practices of not complying
with Cal. Bus. Prof. Code §§ 17600-17606. Certification of this case as a class action will allow those
similarly situated persons to litigate their claims in the manner that is most efficient and economical for
the parties and the judicial system. Certifying this case as a class action is superior because it allows
for efficient and full restitution to Class Members, and will thereby effectuate California’s strong
public policy of protecting the California public from violations of its laws. If this action is not
certified as a Class Action, it will be impossible as a practical matter for many or most Class Members
to bring individual actions to recover monies due from Defendant, due to the relatively small amounts
of such individual recoveries relative to the costs and burdens of litigation.
FIRST CAUSE OF ACTION
UNFAIR COMPETITION LAW VIOLATIONS
(Cal. Bus. Prof. Code §§ 17200 et. seq.)
56. The allegations of Paragraphs | through 55 are realleged and incorporated herein by
reference, and Plaintiffs allege this cause of action on behalf of themselves and the above-described
class of similarly situated Class Members.
oT. Cal. Bus. Prof. Code §§ 17200, et seq. (the “UCL”) prohibits unfair competition in the
form of any “unlawful, unfair, or fraudulent business act or practice” or “any act prohibited by Chapter
1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code,”
which includes the ARL. Cal. Bus. Prof. Code § 17204 allows “any person who has suffered injury in
fact and has lost money or property” to prosecute a civil action for violation of the UCL. Such a
person may bring such an action on behalf of himself and others similarly situated who are affected by
the unlawful, unfair, or fraudulent business practice.
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
58. Beginning at an exact date unknown to Plaintiffs, but at least since the date four years
prior to the filing of the original complaint, and continuing to the present, Defendant has engaged in
unfair competition and committed unlawful business acts and practices as defined by the UCL, by
violating the Automatic Renewal Law, Cal. Bus. Prof. Code § 17602(a)(1)-(3), 17602(b), and Cal. Bus.
Prof. Code § 17603.
59. Cal. Bus. Prof. Code §§ 17602(a)(1)-(2) provide:
(a) It shall be unlawful for any business making an automatic renewal or
continuous service offer to a consumer in this state to do any of the
following:
(1) Fail to present the automatic renewal offer terms or
continuous service offer terms in a clear and conspicuous manner before
the subscription or purchasing agreement is fulfilled and in visual
proximity to the request
(2) Charge the consumer’s credit or debit card or the consumer’s
account with a third party for an automatic renewal or continuous
service without first obtaining the consumer’s affirmative consent to the
agreement containing the automatic renewal offer terms or continuous
service offer terms.
60. Defendant charged Plaintiffs’ and Class Members’ payment methods for an automatic
renewal or continuous service without first obtaining Plaintiffs’ and Class Members’ affirmative
consent to the agreement containing the automatic renewal or continuous service offer terms in a clear
and conspicuous manner in visual proximity to the request for consent to the offer.
61. Cal. Bus. Prof. Code §§ 17602(a)(3), (b) provide:
(a) It shall be unlawful for any business making an automatic renewal or
continuous service offer to a consumer in this state to do any of the
following:
(3) Fail to provide an acknowledgment that includes the
automatic renewal or continuous service offer terms, cancellation policy,
and information regarding how to cancel in a manner that is capable of
being retained by the consumer. If the business includes a free trial, the
business shall also disclose in the acknowledgment how to cancel and
allow the consumer to cancel before the consumer pays for the goods or
services.
(b) A business making automatic renewal or continuous service offers
shall provide a toll-free telephone number, electronic mail address, a
postal address only when the seller directly bills the consumer, or
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
another cost-effective, timely, and easy-to-use mechanism for
cancellation that shall be described in the acknowledgment specified in
paragraph (3) of subdivision (a).
62. Throughout the class period, Defendant failed, and continues to fail, to provide
Plaintiffs and Class Members an acknowledgement that includes the automatic renewal or continuous
service offer terms, cancellation policy, and information regarding how to cancel using a timely, cost-
effective, and easy-to-use mechanism for cancellation, in a manner that is capable of being retained by
the consumer.
63. Defendant’s conduct offends established public policy, is substantially injurious to
consumers, is not outweighed by any countervailing benefits to consumers or to competition, and is not
an injury the consumers themselves could reasonably avoid. Thus, it constitutes an unfair business act
and practice in violation of Cal. Bus. Prof. Code § 17200.
64. | Defendant’s general and specific representations to the public and Plaintiffs regarding
its automatically renewing subscriptions are deceptive and therefore constitute a fraudulent business
act and practice in violation of Cal. Bus. Prof. Code § 17200.
65. Plaintiffs paid money for a subscription, and as such suffered an injury in fact. As a
result of not complying with the statute, by operation of law, the goods, wears, merchandise, or
products sent to Plaintiffs are deemed unconditional gifts. As a result, Plaintiffs’ payment method was
charged and Plaintiffs paid money in circumstances where they should not have had to pay money
because Plaintiffs could use, dispose or deal with the property in any manner they saw fit.
Additionally, had Defendant complied with its disclosure obligations under Cal. Bus. Prof. Code §
17602, Plaintiffs would not have entered into the subscription at the time they did so. As a direct and
proximate result of Defendant’s unlawful, unfair, and/or fraudulent acts and practices described herein,
Defendant has received and continues to hold unlawfully obtained property and money belonging to
Plaintiffs and Class Members in the form of payments made for subscription agreements by Plaintiffs
and Class Members. Defendant has profited from its unlawful, unfair, and/or fraudulent acts and
practices in the amount of those subscription payments and interest accrued thereon.
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FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6
66. Plaintiffs and similarly situated Class Members are entitled to restitution pursuant to
Cal. Bus. Prof. Code §§ 17203 and 17208 for all monies paid by Class Members under the subscription
agreements from the date four years prior to the filing of the original complaint to the date of such
restitution, at rates specified by law.
67. Plaintiffs, on behalf of themselves and Class Members, requests relief as described
below.
SECOND CAUSE OF ACTION
INJUNCTIVE RELIEF AND RESTITUTION
(Cal. Bus. Prof. Code § 17535)
68. The allegations of Paragraphs 1 through 67 are realleged and incorporated herein by
reference, and Plaintiffs allege this cause of action on behalf of themselves and the above-described
class of similarly situated Class Members.
69. Cal. Bus. Prof. Code § 17535, et seg. (the “UCL”) allows “any person who has suffered
injury in fact and has lost money or property” to prosecute a civil action for violation of the UCL.
Such a person may bring such an action on behalf of himself and others similarly situated who are
affected by the unlawful, unfair, or fraudulent business practices.
70. Beginning at an exact date unknown to Plaintiffs, but at least since the date four years
prior to the filing of the original Complaint, and continuing to the present, Defendant has committed
unfair competition and unlawful, unfair, and/or fraudulent business acts and practices as defined by the
UCL, by violating Cal. Bus. Prof. Code §§ 17602 and 17603.
71. As a direct and proximate result of Defendant’s unlawful, unfair, and/or fraudulent acts
and practices described herein, Plaintiffs paid money for an automatic renewal and/or continuous
service plan, and Defendant has receive
Preview
778793.6 18C0V328915 Santa Clara — Civil Laura L. Ho (SBN 173179) lho@gbdhlegal.com James Kan (SBN 240749) jkan@gbdhlegal.com Katharine L. Fisher (SBN 305413) kfisher@gbdhlegal.com GOLDSTEIN, BORGEN, DARDARIAN & HO 300 Lakeside Drive, Suite 1000 Oakland, CA 94612 Tel: (510) 763-9800 Fax: (510) 835-1417 Julian Hammond (SBN 268489) jhammond@hammondlawpc.com Ari Cherniak (SBN 290071) acherniak@hammondlawpc.com Polina Brandler (SBN 269086) pbrandler@hammondlawpc.com HAMMONDLAW, P.C. 1829 Reisterstown Rd., Suite 410 Baltimore, MD 21208 Tel: (310) 601-6766 Fax: (310) 295-2385 Attorneys for Plaintiffs and Putative Class Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/20/2020 4:20 PM Reviewed By: R. Walker Case #18CV328915 Envelope: 4358614 SUPERIOR COURT OF TH E STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA ABDULLAH UZAIR, ANGEL CHAVEZ, NICHOLAS JOEL LUSKIN, and SALVADOR DE LA O, individually and on behalf of all others similarly situated, Plaintiffs, vs. GOOGLE, LLC., a California Limited Liability Company, Defendant. Case No.: 1-18-CV-328915 FIRST AMENDED CLASS ACTION COMPLAINT FOR (1) UCL VIOLATIONS (CAL. BUS. PROF. CODE §§ 17200-17204); INJUNCTIVE RELIEF AND RESTITUTION (CAL. BUS. PROF. CODE § 17535); VIOLATION OF CONSUMER LEGAL REMEDIES ACT (CAL. CIV. CODE §§ 1750 ET SEQ.); COMMON COUNT FOR MONEY HAD AND RECEIVED; AND DECLARATORY RELIEF (CAL. CODE CIV. PROC. § 1060). Jury Trial Demanded Q) (3) (4) 6) FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 Plaintiffs Abdullah Uzair, Angel Chavez, Nicholas Joel Luskin, and Salvador De La O (“Plaintiffs”), on behalf of themselves and all others similarly situated, complain and allege as follows: L OVERVIEW OF CLAIMS le This is a class action, under California Code of Civil Procedure section 382, seeking restitutionary, injunctive, declaratory and/or other equitable relief, and reasonable attorneys’ fees and costs under California Business and Professions Code (hereinafter “Cal. Bus. Prof. Code”) sections 17535 and 17200, et seg.; California Code of Civil Procedure (hereinafter “Cal. Code Civ. Proc.”) sections 1060, 1021.5; and California Civil Code (“Cal. Civ. Code”) § 1780, on behalf of Plaintiffs and all other similarly situated individuals in California who purchased a subscription from Google, LLC (hereinafter “Google” or “Defendant”) billed through the Google Play Store (hereinafter “Class Members”) from the date four years prior to the filing of the original complaint to the present (hereinafter “Class Period”).' Plaintiffs and Class Members are consumers for purposes of California Business and Professions Code sections 17600-17606 and California Civil Code sections 1750-1784. 2. During the Class Period, Google made, and continues to make, automatic renewal or continuous service offers to consumers in and throughout California, and charged, and continues to charge, Plaintiffs’ and Class Members’ credit or debit cards, or third party payment account (hereinafter “payment method”), without first obtaining Plaintiffs’ and Class Members’ affirmative consent to the agreement containing the automatic renewal offer terms or continuous service offer terms in violation of Cal. Bus. Prof. Code § 17602(a). Moreover, Google, at the time of making the automatic renewal or continuous service offer, failed to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner and in visual proximity to the request for consent to the offer before the subscription or purchasing agreement was fulfilled. Google also failed to provide an acknowledgment that includes the automatic renewal or continuous service offer ' The Court’s Feb. 1, 2019 Order sustained Defendant’s Demurrer to Plaintiffs’ first cause of action in the Complaint, under California’s Automatic Renewal Law, Cal. Bus. & Prof. Code §§ 17602, 17603, 17604, without leave to amend. Thus, Plaintiff does not re-allege that cause of action in this First Amended Complaint. However, Plaintiffs expressly reserves the right to appeal the Court’s decision as to that cause of action. See Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Servs. Grp., Inc., 171 Cal. App. 4th 35 (2009). 1 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 terms, cancellation policy, and information regarding how to cancel in a manner that is capable of being retained by the consumer. As a result, all goods, wares, merchandise, or products sent to Plaintiffs and Class Members under the automatic renewal or continuous service agreement are deemed to be unconditional gifts pursuant to Cal. Bus. Prof. Code § 17603. Moreover, Class Members complained to Google that they did not know their subscriptions would be automatically renewed, yet Google did nothing to correct those business practices. 3. As a result of the above, Plaintiffs, on behalf of themselves and Class Members, seek restitution, declaratory relief, injunctive relief, prejudgment interest, and reasonable attorneys’ fees and costs pursuant to Cal. Bus. Prof. Code §§ 17203, 17204, and 17535, Cal. Code Civ. Proc. §§ 1060, 1021.5, and Cal. Civ. Code § 1780. 4. The “Class Period” is designated as the period from four years prior to the filing of the original complaint through to the trial date. Defendant’s violations of California’s Business and Professions Code and unfair competition laws, as described more fully below, have been ongoing since the beginning of the Class Period, and are continuing at present. Il. JURISDICTION 5. This Court has jurisdiction over the claims for restitution, injunctive relief, and declaratory relief arising from Defendant’s unlawful business practices, under Cal. Bus. Prof. Code §§ 17203, 17204, and 17535, and Cal. Code Civ. Proc. § 1060. 6. This Court has jurisdiction over the claims for violation of the Consumer Legal Remedies Act under California Civil Code § 1780. 7. This Court has jurisdiction over Common Counts such as Money Had and Received. Til. VENUE 8. Defendant is located in Santa Clara County, California. As such, venue as to Defendant is proper in the County of Santa Clara pursuant to California Code of Civil Procedure § 395(a). IV. PARTIES 9. Plaintiff Abdullah Uzair resides in California and is a consumer for purposes of Cal. Bus. Prof. Code § 17601(d). On or about March 16, 2016, Plaintiff purchased a family plan 2 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 subscription to Google Play Music from Defendant. Because Defendant failed to clearly and conspicuously disclose the automatic renewal offer terms in visual proximity to the request for Plaintiff's consent to the offer, Plaintiff was not informed prior to purchase that the subscription would renew automatically until cancelled or that any cancellation would not be effective until the next period. Had Defendant made these disclosures, Plaintiff would not have subscribed to Google Play Music at the time he did so. Since March 16, 2016, Defendant has charged and continues to charge Plaintiff $14.99 per month on a recurring basis for the Google Play Music subscription, utilizing the Payment Method associated with Plaintiff's Google Play Account. 10. Plaintiff Angel Chavez resides in California and is a consumer for purposes of Cal. Bus. Prof. Code § 17601(d). In or around May 2016, Plaintiff signed up for a free trial to Google Play Music from Defendant. As soon as the free trial ended, Defendant began charging him monthly for Google Play Music on an automatically renewing basis, starting at $9.99/month. Because Defendant failed to clearly and conspicuously disclose the automatic renewal offer terms in visual proximity to the request for Plaintiffs consent to the offer prior to the expiration of the free trial, Plaintiff was not informed prior to purchase that the subscription would renew automatically until cancelled or that any cancellation would not be effective until the next period. Had Defendant made these disclosures, Plaintiff would not have subscribed to Google Play Music at the time he did so. 11. Plaintiff Nicholas Joel Luskin resides in California and is a consumer for purposes of Cal. Bus. Prof. Code § 17601(d). In December 2019, Plaintiff signed up for a one-week free trial to Disney+ from Defendant. As soon as the free trial ended, Defendant began charging him monthly for Disney+ on an automatically renewing basis, starting at $6.99/month. Because Defendant failed to clearly and conspicuously disclose the automatic renewal offer terms in visual proximity to the request for Plaintiff's consent to the offer prior to the expiration of the free trial, Plaintiff was not informed prior to purchase that the subscription would renew automatically until cancelled or that any cancellation would not be effective until the next period. Had Defendant made these disclosures, Plaintiff would not have subscribed to Disney+ at the time he did so. Since December 2019, Defendant has charged and continues to charge Plaintiff on a monthly recurring basis for the Disney+ 3 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 subscription, utilizing the Payment Method associated with Plaintiff's Google Play Account. 12. Plaintiff Salvador De La O resides in California and is a consumer for purposes of Cal. Bus. Prof. Code § 17601(d). In or around July 2014, Plaintiff signed up for a free trial to Google Play music from Defendant. As soon as the free trial ended, Defendant began charging him on a monthly basis for Google Play Music on an automatically renewing basis. Because Defendant failed to clearly and conspicuously disclose the automatic renewal offer terms in visual proximity to the request for Plaintiff's consent to the offer prior to the expiration of the free trial, Plaintiff was not informed prior to purchase that the subscription would renew automatically until cancelled or that any cancellation would not be effective until the next period. Had Defendant made these disclosures, Plaintiff would not have subscribed to Google Play Music at the time he did so. Since 2014, Defendant has charged Plaintiff on a monthly recurring basis for the Google Play Music subscription, utilizing the Payment Method associated with Plaintiff's Google Play Account. 13. Defendant Google, LLC is a California corporation with its principal place of business located at 1600 Amphitheatre Parkway, Mountain View, California. The policies, practices, and unlawful conduct complained of herein were formulated, implemented, and maintained, in whole or in substantial part, at that address. 14. All of Plaintiffs’ claims stated herein are asserted against Defendant and any of its predecessors, successors, and/or assigns that do, or have done, business, with Class Members in California during the Class Period. Ve FACTUAL BACKGROUND A. California Business Professions Code §§ 17600-17606 155 On December 1, 2010, §§ 17600-17606 of Article 9, of Chapter 1 of Part 3, of Division 7 of the Cal. Bus. Prof. Code came into effect. The stated intent of the Legislature of this Article was to end the practice of ongoing charging of consumer payment methods without the consumers’ explicit consent for ongoing shipments of a product or ongoing deliveries of service: See, § 17600 of the Cal. Bus. Prof. Code. 4 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 16. Cal. Bus. Prof. Code § 17602(a) makes it unlawful for any business making an automatic renewal or continuous service offer to a consumer in this state to do any of the following: a. Fail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before the subscription or purchasing agreement is fulfilled and in visual proximity, or in the case of an offer conveyed by voice, in temporal proximity, to the request for consent to the offer. b. To charge the consumer’s credit or debit card or the consumer’s account with a third party for an automatic renewal or continuous service without first obtaining the consumer’s affirmative consent to the agreement containing the automatic renewal offer terms or continuous service offer terms. c. Fail to provide an acknowledgment that includes the automatic renewal or continuous service offer terms, cancellation policy, and information regarding how to cancel in a manner that is capable of being retained by the consumer. If the offer includes a free trial, the business shall also disclose in the acknowledgment how to cancel and allow the consumer to cancel before the consumer pays for the goods or services. 17. Cal. Bus. Prof. Code § 17602(b) provides that “[a] business making automatic renewal or continuous service offers shall provide a toll-free telephone number, electronic mail address, a postal address only when the seller directly bills the consumer, or another cost-effective, timely, and easy-to-use mechanism for cancellation that shall be described in the acknowledgment specified in paragraph (3) of subdivision (a).” 18. Cal. Bus. Prof. Code § 17601(a) defines the term “Automatic renewal” as a plan or arrangement in which a paid subscription or purchasing agreement is automatically renewed at the end of a definite term for a subsequent term. 19. Cal. Bus. Prof. Code § 17601(e) defines the term “Continuous service” as a plan or arrangement in which a subscription or purchasing agreement continues until the consumer cancels the service. 5 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 20. Cal. Bus. Prof. Code § 17601(b) defines the term “Automatic renewal offer terms” as “the following clear and conspicuous disclosures: (1) That the subscription or purchasing agreement will continue until the consumer cancels. (2) The description of the cancellation policy that applies to the offer. (3) The recurring charges that will be charged to the consumer’s credit or debit card or payment account with a third party as part of the automatic renewal plan or arrangement, and that the amount of the charge may change, if that is the case, and the amount to which the charge will change, if known. (4) The length of the automatic renewal term or that the service is continuous, unless the length of the term is chosen by the consumer. (5) The minimum purchase obligation, if any.” 21. Pursuant to § 17601(c), “clear and conspicuous” or “clearly and conspicuously” means “in larger type than the surrounding text, or in contrasting type, font, or color to the surrounding text of the same size, or set off from the surrounding text of the same size by symbols or other marks, in a manner that clearly calls attention to the language.” 22. Section 17603 of the Cal. Bus. Prof. Code provides: “In any case in which a business sends any goods, wares, merchandise, or products to a consumer, under a continuous service agreement or automatic renewal of a purchase, without first obtaining the consumer’s affirmative consent as described in Section 17602, the goods, wares, merchandise, or products shall for all purposes be deemed an unconditional gift to the consumer, who may use or dispose of the same in any manner he or she sees fit without any obligation whatsoever on the consumer’s part to the business, including, but not limited to, bearing the cost of, or responsibility for, shipping any goods, wares, merchandise, or products to the business.” B. Defendant’s Business 23. Defendant operates and, at all times during the Class Period, has done business throughout California. Defendant designs, manufactures, and markets internet-related services and products. Defendant develops and operates “Google Play,” through which Defendant sells and delivers digital products and applications (hereinafter “Apps” or “App”). 24. An App is an abbreviation for the term “application.” An application is a piece of software or a software program that controls the functioning of hardware and directs its operation. An 6 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-3289151|| App is the mechanism, or software, that allowed and continues to allow Plaintiffs and Class Members 2]| to download and view digital products. 3 25. Google Play is the official App store for the Android operating system which allows 4]|| consumers to browse and download applications developed with the Android software development 5|| kit. Through the Google Play Store, Defendant publishes its own and third-party developers’ 6|| applications. 7 26. Throughout the Class Period, Defendant, through its Google Play Store, offered and 8|| continues to offer consumers in California (including Plaintiffs and Class Members) digital products 9|| (including, but not limited to, songs, movies, television shows, magazines, newspapers, periodicals, 10|] and other digital products), using a plan or arrangement in which a paid subscription or purchasing 11]| agreement is automatically renewed at the end of a definite term for a subsequent term or continues 12]| until the consumer cancels (“In-App subscriptions”). As such, Defendant’s In-App subscriptions were, 13 || and are, “automatic renewal” and/or “continuous service” plans for the purposes of Cal. Bus. Prof. 14|| Code §§ 17601(a), (e). During the Class Period, Plaintiffs and Class Members accepted Defendant’s 15 || offers for In-App subscriptions, after which acceptance Defendant delivered, and continues to deliver, 16]| digital products, and Defendant charged, and continues to charge, Plaintiffs’ and Class Members’ 17|| payment method for the digital products. 18 27. Defendant’s own applications offering In-App subscriptions include, for example, 19 || Google Play Music. Third-Party Applications include, for example, HBO Now. To make purchases 20]| through Google Play, whether for Google’s or Third-Parties’ applications, consumers use Google 21]| Play’s payment system, formerly known as Google Wallets and currently called Google Payments. On 22]| information and belief, all products offered through Defendant’s in-app subscriptions are capable of 23 || being downloaded, stored, printed, or otherwise introduced into the physical world. 24 28. Inall instances relevant to this action, Defendant is an obligor. With regards to the 25 || sales of the In-App subscriptions at issue, Defendant is the business making the offer. Defendant 26]| enrolls subscribers in, processes payment for, and delivers the subscriptions. Defendant, and 27|| Defendant alone, charged, and continues to charge, Plaintiffs’ and Class Members’ payment method, 7 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915 778793.6778793.6 and indeed the publisher (or App developer) never received, and continues not to receive, Plaintiffs’ and Class Members’ payment method information. Cc. Defendant’s Legal Agreements 29. In order to make purchases from Defendant’s online store, the “Google Play Store,” Plaintiffs and Class Members must have a Google Account with a Google ID and password and are required to set up a Google Payments Account and provide Defendant with their payment method information. During this process, Plaintiff and Class Members were also required, and continue to be required, to state that they agree to the Google Play Terms of Service and the Google Payments Terms of Service (“Legal Agreements”), in addition to other legal agreements, either expressly or by accepting another legal agreement. Defendant’s February 5, 2018 Google Play Terms of Service and April 18, 2018 Google Payments Terms of Service are attached hereto as Exhibits A and B, respectively. 30. | On information and belief, Google has published at least ten versions of its Google Play Terms of Service, dated: August 15, 2012; November 20, 2013; April 8, 2014; December 10, 2014; December 9, 2015; July 27, 2016; January 27, 2017; June 16, 2017; December 18, 2017; and February 5, 2018. As viewed on a computer, the Google Play Terms of Service dated February 5, 2018 are 10 pages long. See Exh.A.2. As viewed on a typical mobile device, the same Terms of Service cover 21 screens. See Exh. A.1. Prior versions of the Google Play Terms of Service effective during the class period were up to 16 pages, or approximately 34 screens, long (e.g., December 9, 2015). 31. | On information and belief, prior to December 9, 2015, the Google Play Terms of Service required consumers to accept the Google Wallet Terms of Service, and beginning December 9, 2015, consumers were required to accept the Google Payments Terms of Service. On information and belief, Defendant published two versions of the Google Wallet Terms of Service that applied during the class period, dated April 24, 2014 and October 29, 2014. Then, beginning June 1, 2015, Defendant began publishing the Google Payments Terms of Service and has since published at least six additional versions, dated: October 14, 2016; July 27, 2017; August 31, 2017; August 31, 2017; February 20, 2018; April 18, 2018; and May 1, 2019. 8 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-3289151 32. As shown in Exhibit B, the Google Payments Terms of Service dated April 18, 2018 2] span ninety-nine screens on a typical mobile device (Exh. B.1) and are 21-pages long on a computer 3|| screen (Exh. B.2). The Google Payments Terms of Service are divided into sections and subsections 4|| by headings. The section headings are in bold letters and the subsection headings are in non-bolded, 5|| lowercase letters. In some paragraphs, Defendant uses all capital letters to draw the attention to the 6|| importance to the language contained therein. Throughout the class period, the text of the Google 7\| Payment Terms of Service has been and is in small font and is difficult to read. 8 33. On information and belief, consumers accept the Google Play Terms of Service when 9|| first using the Google Play Store App and then when the Terms are updated if making a new purchase. 10|| Consumers do not agree to the Google Play Terms of Service prior to each and every purchase. When 11 || Google Play offers consumers an In-App Subscription, small text appears at the bottom of the screen 12]| which states “By tapping ‘subscribe,’ you agree to the Terms of Service — Android (US).” On 13 || information and belief, this hyperlink opens the Google Payments Terms of Service. 14 34. Paragraph 3.5 of the Google Payment Terms of Service (screens 29-30 of Exh. B.1; or 15]|] pages 6-7 of Exh. B.2), under the section heading “Subscriptions/Recurring Transactions Purchases 16] (which is not bolded), provides: 17 In the event that the Processing Service offers you the ability to pay for subscriptions, your subscription will start when you click 18 “Accept & buy” on a subscription purchase. This is a recurring 19 billing transaction. Unless otherwise stated, your subscription and the relevant billing authorization will continue indefinitely until 20 cancelled by you. 21 By clicking “Accept & buy”(or equivalent phrase), you authorize the applicable Seller to bill your chosen Payment Instrument each 22 designated billing period for the subscription at the Purchase Amount. You further authorize the applicable Seller to charge the Purchase Amount to the alternate Payment Instrument, if you have 24 selected one in your Google Payments Account, in the event that the Seller is unable to charge to your designated Payment 25 Instrument for any reason. 26 The Purchase Amount will continue to be charged to your Payment Instrument or alternate Payment Instrument (if applicable) each 27 billing period, until you cancel your subscription, unless as 28 otherwise stated in the terms and conditions. The billing rate is subject to change by the Seller during the subscription period. 9 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915 778793.6778793.6 Your Payment Instrument will be billed each period based on the date of the subscription purchase. You may cancel a subscription at any time by following the process described here, but the cancellation will not become effective until the end of the current billing period. You will not receive a refund for the current billing period. You will continue to be able to access the relevant subscription for the remainder of the current billing period. We reserve the right to issue refunds or credits at our sole discretion. If we issue a refund or credit, we are under no obligation to issue the same or similar refund in the future. 35. The Google Play Terms of Service similarly describe Google’s cancellation policy in the section titled “Subscriptions,” providing: (b) Cancellations. You may cancel a subscription at any time before the end of the applicable billing period as described in the Help Center, and the cancellation will apply to the next period. For example, if you purchase a monthly subscription, you may cancel that subscription at any time during any month of the subscription, and the subscription will be cancelled as of the following month. You will not receive a refund for the current billing period, except as otherwise provided in Google Play's Refund Policy (for example where Content is defective). See Exh. A.1 (screen 11 of 21); Exh. A.2 (page 5 of 10). 36. This cancellation policy and minimum purchase obligation applied to Google Play subscription purchases throughout the Class Period and was described in substantially similar language in prior and subsequent versions of the Google Payment Terms of Service and the Google Play Terms of Service as that excerpted above. D. Defendant Fails To Present The Offer Terms In A Clear And Conspicuous Manner In Visual Proximity to the Request for Consent 37. Throughout the Class Period, Defendant’s “subscription flow,” or the process by which Plaintiffs and Class Members are presented with and then accept an offer for an automatically renewing subscription, failed to clearly and conspicuously disclose the offer terms because Defendant failed and continues to fail to describe that the subscription will continue until cancelled, the cancellation policy that applies to the offer, and the minimum purchase obligation in a clear and 10 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 conspicuous manner in visual proximity to Defendant’s request for consent to the offer, before the subscription or purchasing agreement was, and is fulfilled. 38. Defendant made, and continues to make, automatic renewal offers to consumers in California, including Plaintiffs and Class Members, using the word “subscribe.” On information and belief, Defendant offers subscriptions for some products directly through its Google Play Store. Once consumers find the product in the Store, Defendant presents the consumer the option to “subscribe” by clicking a “Subscribe” or a similar button (hereinafter the “subscribe button”). 39. | Defendant also makes offers for subscriptions to products through its own or Third Party’s Applications. Consumers locate the product’s Application in the Google Play Store, select the option to “Install” the Application, and then (possibly at a later date), open up the Application. Then, within the Application, the consumer presses a “subscribe” button. 40. For subscriptions in which Defendant offers consumers the option to choose a subscription length, when Plaintiffs and Class Members press the first “subscribe” button, Defendant caused, and continues to cause, a Purchase Options pop-up screen to appear. This screen displays the subscription lengths and prices offered, and the consumer selects the desired subscription. Al. After Plaintiffs and Class Members selected, and continue to select, their desired subscription period on the Purchase Options screen, if applicable, Defendant caused, and continues to cause, a Google Play pop up screen to appear that summarizes Defendant’s subscription offer. This pop up screen does not disclose that the subscription will automatically renew until the consumer affirmatively acts to cancel the subscription. Defendant further fails to disclose that any cancellation is not effective until the end of the current billing period. Thus, Defendant fails to disclose that the agreement will continue until cancelled, to describe the cancellation policy that applies to the offer, and fails to disclose that there is a minimum purchase obligation because the consumer is required to purchase the current subscription, at a minimum. 42. At the bottom right corner of the offer summary pop-up screen is a “subscribe” button, which on information and belief is generally blue or green, with white, all-capitalized text. The consumer may select the “subscribe” button without viewing any additional information. Once the 11 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 consumer selects “subscribe,” they were, and are, required to authenticate their Account Information, which they did, and continue to do, by entering their Google Play ID and password, and pressing “Confirm,” after which Defendant charged, and continues to charge, their payment method (unless the offer is subject to a free trial, in which case Defendant charged, and continues to charge, their payment method at the end of the free trial). 43. However, if, prior to clicking “subscribe,” the consumer notices and then selects the small down arrow on the screen, the offer summary screen expands. On this expanded summary screen, Defendant provides hyperlinks and additional information. This expanded summary screen did not and does not disclose that the subscription is automatically renewing and will continued until cancelled. The expanded summary screen did not and does not disclose that the cancellation is not effective until the next billing period or that the consumer is required to purchase the current subscription at a minimum. 44. Sometime since the beginning of the class period, Defendant started adding a statement to the bottom of the offer summary screen in smaller and lighter font than the rest of the text on the screen that reads: “By tapping “Subscribe”, you agree to the Terms of Service — Android (US).” On information and belief, by clicking the “Terms of Service — Android (US)” hyperlink, consumers are taken to the Google Payments Terms of Service described above. If the consumer proceeds to this link, they can scroll for approximately 29-30 screens out of 99 total screens to discover that “This is a recurring billing transaction. Unless otherwise stated, your subscription and the relevant billing authorization will continue indefinitely until cancelled by you” and that “You may cancel a subscription at any time by following the process described here, but the cancellation will not become effective until the end of the current billing period. You will not receive a refund for the current billing period.” See Exh. B.1. These disclosures are neither clear and conspicuous nor in visual proximity to Defendant’s request for consent to the offer. 45. Asaresult of the above, and in violation of Cal. Bus. Prof. Code § 17602(a)(1), Defendant made, and continues to make, an automatic renewal or continuous service offer to consumers, including Plaintiffs and Class Members in California, and failed, and continues to fail, to 12 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner in visual proximity to the request for consent to the offer, before the subscription or purchasing agreement was, and is fulfilled. 46. | Consumers have been and are misled by Defendant’s failure to clearly and conspicuously disclose the recurring nature of the subscription and that purchased subscriptions cannot be cancelled. Consumers have complained to Defendant about its unlawful, unfair, and deceptive acts, but Defendant has nonetheless failed and continues to fail to remedy them. E. Legal Agreements Do Not Contain the Automatic Renewal Offer Terms 47. In addition, the Legal Agreements did not, and do not, contain the automatic renewal offer terms as defined by Cal. Bus. Prof. Code § 17601(b)(1)-(5), in so far as the Legal Agreements do not state (1) the recurring charges that will be charged to the payment method information as part of the automatic renewal plan or arrangement; (2) the length of the automatic renewal term or that the service is continuous where the length of the term is not chosen by the consumer; or (3) that there is a minimum purchase obligation. 48. In addition, the disclosures that Defendant did make — that are located on pages 6 and 7 (Exh. B.2) or screens 29-30 (Exh. B.1) of the Google Payment Terms of Service with a section heading that was not bolded, and on page 5 of 10 (Exh. A.2) or screens 10-11 (Exh. A.1) of the Google Play Terms of Service — were not, and continue to not be clear and conspicuous, as required by the statute. The disclosures that Defendant made, and continues to make, are in the same color, size, and type of font as the surrounding text, and not set off from the surrounding text of the same size by symbols or other marks in a manner that clearly calls attention to the language. As such, the disclosures were not, and continue to not be made in a clear and conspicuous manner as defined by Cal. Bus. Prof. Code § 17601(1)(c), and as required by Cal. Bus. Prof. Code § 17601(b) and 17602(a)(1). 49. Moreover, the Google Payment Terms of Service are not accessible when Defendant makes the subscription offer except by clicking a small nondescript hyperlink and scrolling through nearly 30 of 99 screens (and even this hyperlink was not present in the subscription flow for the entire class period). The Google Play Terms of Service are not accessible within the subscription offer at all. 13 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 As such, the disclosures contained in these legal agreements are not in visual proximity to the business’s request for the consumer’s consent to the offer pursuant to Cal. Bus. Prof. Code § 17602(a)(1). F. Defendant Fails to Obtain Affirmative Consent to the Agreement Containing the Offer Terms 50. As described above, Plaintiffs and Class Members accepted, and continue to accept, Defendant’s subscription offers by pressing the “subscribe” button, authenticating their account information, and then pressing “Confirm” at which time Defendant charged, and continues to charge, their payment methods (unless the offer was subject to a free trial, in which case Defendant charges the payment method at the end of the free trial). 51. | However, after making the In-App subscription offer, and prior to charging the Plaintiffs’ and Class Members’ payment information, Defendant completely failed and continues to fail to obtain Plaintiffs’ and Class Members’ affirmative consent to the agreement containing all of the automatic renewal offer terms or continuous service offer terms. In fact, throughout the checkout process for the In-App subscription there is no mechanism that required, and requires, Plaintiffs and Class Members to expressly manifest their consent to an agreement containing all the automatic renewal offer terms or continuous service offer terms. 52. Asaresult of the above, and in violation of Cal. Bus. Prof. Code § 17602(a)(2), Defendant charged, and continues to charge, Plaintiffs’ and Class Members’ payment methods without first obtaining Plaintiffs’ and Class Members’ affirmative consent to an agreement containing the automatic renewal offer terms or continuous service offer terms. As a result, any goods, wares, merchandise, or products, sent to Plaintiffs and Class Members under the subscription plan shall for all purposes be deemed unconditional gifts to the consumers, who may use or dispose of the same in any manner they see fit without any obligation whatsoever on the consumer’s part to the business, including, but not limited to, bearing the cost of, or responsibility for, shipping any goods, wares, merchandise, or products to the business. 14 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 G. Defendant Failed to Provide an Acknowledgment as Required by Cal. Bus. & Prof. Code § 17602(a)(3) 53: Furthermore, and in addition to the above, after Plaintiffs and Class Members subscribed to one of Defendant’s In-App subscriptions, Defendant sent, and continues to send, Plaintiffs and Class Members an email. But that e-mail failed, and continues to fail, to provide an acknowledgement that includes the automatic renewal or continuous service offer terms, cancellation policy, and information on how to cancel in a manner that is capable of being retained by Plaintiffs and Class Members, in violation of Cal. Bus. Prof. Code § 17602(a)(3). Moreover, Defendant failed to provide Plaintiffs and Class Members with an acknowledgement describing a timely, cost-effective, and easy to use mechanism for cancellation as required by Cal. Bus. Prof. Code 17602(b), and Defendant failed to allow Plaintiffs and Class Members to cancel before payment as required by § 17602(a)(3). VI. CLASS ACTION ALLEGATIONS 54. aintiffs bring this action, on behalf of themselves and all others similarly situated, as a class action pursuant to Cal. Code Civ. Proc. § 382. The Class that Plaintiffs seek to represent is composed of and defined as: All persons in California who purchased a subscription from Google, other than a subscription to Google Drive, billed through the Google Play Store from the date four years prior to the filing of the original Complaint to the present. 2): This action has been brought and may properly be maintained as a class action under Cal. Code Civ. Proc. § 382 because there is a well-defined community of interest in the litigation, the proposed class is easily ascertainable, and Plaintiffs are proper representatives of the Class: a. Numerosity: The potential members of the Class as defined are so numerous and so diversely located throughout California, that joinder of all the members of the Class is impracticable. b. Commonality: There are questions of law and fact common to Plaintiffs and the Class that predominate over any questions affecting only individual members of the Class. These common questions of law and fact include, without limitation: i. Whether Defendant failed to provide disclosures and acknowledgment required 15 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 to be provided under Cal. Bus. Prof. Code §§ 17602(a)-(b); ii. Whether Defendant charged Plaintiffs’ and Class Members’ payment methods for an automatic renewal or continuous service without first obtaining Plaintiffs’ and Class Members’ affirmative consent to the agreement containing the automatic renewal offer terms or continuous service offer terms in violation of Cal. Bus. Prof. Code § 17602(a)(2); iii. Whether Defendant’s legal agreements contain the automatic renewal offer terms and/or continuous service offer terms as defined by Cal. Bus. Prof. Code § 17601; iv. Whether Defendant failed to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before the subscription or purchasing agreement was fulfilled and in visual proximity, or in the case of an offer conveyed by voice, in temporal proximity, to the request for consent to the offer in violation of Cal. Bus. Prof. Code § 17602(a)(1); v. Whether Cal. Bus. Prof. Code § 17603 in conjunction with Cal. Bus. Prof. Code § 17200 et seq. provides for restitution of money paid by Class Members in circumstances where the goods and services provided by Defendant is deemed an unconditional gift; vi. Whether Plaintiffs and Class Members are entitled to restitution under Cal. Bus. Prof. Code §§ 17200-17203; vii. Whether Plaintiffs and Class Members are entitled to declaratory relief, injunctive relief and/or restitution under Cal. Bus. Prof. Code § 17535, Cal. Civ. Code 1782, and/or Cal. Code of Civil Procedure § 1060; and viii. The proper measure of restitution owed to Class Members. c. Typicality: Plaintiffs’ claims are typical of the claims of the Class. Both Plaintiffs and Class Members were deprived of property rightly belonging to them, arising out of and caused by Defendant’s common course of conduct in violation of law as alleged herein, in similar ways. d. Adequacy of Representation: Plaintiffs are members of the Class and will fairly and adequately represent and protect the interests of the Class Members. Plaintiffs’ interests do not conflict with those of Class Members. Counsel who represent Plaintiffs are competent and 16 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 experienced in litigating large class actions, including those based on the ARL, and will devote sufficient time and resources to the case and otherwise adequately represent the Class. e. Superiority of Class Action: A class action is superior to other available means for the fair and efficient adjudication of this controversy. Individual joinder of all Class Members is not practicable, and questions of law and fact common to the Class predominate over any questions affecting only individual members of the Class. Plaintiffs and Class Members have suffered or may suffer loss in the future by reason of Defendant’s unlawful policies and/or practices of not complying with Cal. Bus. Prof. Code §§ 17600-17606. Certification of this case as a class action will allow those similarly situated persons to litigate their claims in the manner that is most efficient and economical for the parties and the judicial system. Certifying this case as a class action is superior because it allows for efficient and full restitution to Class Members, and will thereby effectuate California’s strong public policy of protecting the California public from violations of its laws. If this action is not certified as a Class Action, it will be impossible as a practical matter for many or most Class Members to bring individual actions to recover monies due from Defendant, due to the relatively small amounts of such individual recoveries relative to the costs and burdens of litigation. FIRST CAUSE OF ACTION UNFAIR COMPETITION LAW VIOLATIONS (Cal. Bus. Prof. Code §§ 17200 et. seq.) 56. The allegations of Paragraphs | through 55 are realleged and incorporated herein by reference, and Plaintiffs allege this cause of action on behalf of themselves and the above-described class of similarly situated Class Members. oT. Cal. Bus. Prof. Code §§ 17200, et seq. (the “UCL”) prohibits unfair competition in the form of any “unlawful, unfair, or fraudulent business act or practice” or “any act prohibited by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professions Code,” which includes the ARL. Cal. Bus. Prof. Code § 17204 allows “any person who has suffered injury in fact and has lost money or property” to prosecute a civil action for violation of the UCL. Such a person may bring such an action on behalf of himself and others similarly situated who are affected by the unlawful, unfair, or fraudulent business practice. 17 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 58. Beginning at an exact date unknown to Plaintiffs, but at least since the date four years prior to the filing of the original complaint, and continuing to the present, Defendant has engaged in unfair competition and committed unlawful business acts and practices as defined by the UCL, by violating the Automatic Renewal Law, Cal. Bus. Prof. Code § 17602(a)(1)-(3), 17602(b), and Cal. Bus. Prof. Code § 17603. 59. Cal. Bus. Prof. Code §§ 17602(a)(1)-(2) provide: (a) It shall be unlawful for any business making an automatic renewal or continuous service offer to a consumer in this state to do any of the following: (1) Fail to present the automatic renewal offer terms or continuous service offer terms in a clear and conspicuous manner before the subscription or purchasing agreement is fulfilled and in visual proximity to the request (2) Charge the consumer’s credit or debit card or the consumer’s account with a third party for an automatic renewal or continuous service without first obtaining the consumer’s affirmative consent to the agreement containing the automatic renewal offer terms or continuous service offer terms. 60. Defendant charged Plaintiffs’ and Class Members’ payment methods for an automatic renewal or continuous service without first obtaining Plaintiffs’ and Class Members’ affirmative consent to the agreement containing the automatic renewal or continuous service offer terms in a clear and conspicuous manner in visual proximity to the request for consent to the offer. 61. Cal. Bus. Prof. Code §§ 17602(a)(3), (b) provide: (a) It shall be unlawful for any business making an automatic renewal or continuous service offer to a consumer in this state to do any of the following: (3) Fail to provide an acknowledgment that includes the automatic renewal or continuous service offer terms, cancellation policy, and information regarding how to cancel in a manner that is capable of being retained by the consumer. If the business includes a free trial, the business shall also disclose in the acknowledgment how to cancel and allow the consumer to cancel before the consumer pays for the goods or services. (b) A business making automatic renewal or continuous service offers shall provide a toll-free telephone number, electronic mail address, a postal address only when the seller directly bills the consumer, or 18 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 another cost-effective, timely, and easy-to-use mechanism for cancellation that shall be described in the acknowledgment specified in paragraph (3) of subdivision (a). 62. Throughout the class period, Defendant failed, and continues to fail, to provide Plaintiffs and Class Members an acknowledgement that includes the automatic renewal or continuous service offer terms, cancellation policy, and information regarding how to cancel using a timely, cost- effective, and easy-to-use mechanism for cancellation, in a manner that is capable of being retained by the consumer. 63. Defendant’s conduct offends established public policy, is substantially injurious to consumers, is not outweighed by any countervailing benefits to consumers or to competition, and is not an injury the consumers themselves could reasonably avoid. Thus, it constitutes an unfair business act and practice in violation of Cal. Bus. Prof. Code § 17200. 64. | Defendant’s general and specific representations to the public and Plaintiffs regarding its automatically renewing subscriptions are deceptive and therefore constitute a fraudulent business act and practice in violation of Cal. Bus. Prof. Code § 17200. 65. Plaintiffs paid money for a subscription, and as such suffered an injury in fact. As a result of not complying with the statute, by operation of law, the goods, wears, merchandise, or products sent to Plaintiffs are deemed unconditional gifts. As a result, Plaintiffs’ payment method was charged and Plaintiffs paid money in circumstances where they should not have had to pay money because Plaintiffs could use, dispose or deal with the property in any manner they saw fit. Additionally, had Defendant complied with its disclosure obligations under Cal. Bus. Prof. Code § 17602, Plaintiffs would not have entered into the subscription at the time they did so. As a direct and proximate result of Defendant’s unlawful, unfair, and/or fraudulent acts and practices described herein, Defendant has received and continues to hold unlawfully obtained property and money belonging to Plaintiffs and Class Members in the form of payments made for subscription agreements by Plaintiffs and Class Members. Defendant has profited from its unlawful, unfair, and/or fraudulent acts and practices in the amount of those subscription payments and interest accrued thereon. 19 FIRST AMENDED CLASS ACTION COMPLAINT — CASE NO.: 18-CV-328915778793.6 66. Plaintiffs and similarly situated Class Members are entitled to restitution pursuant to Cal. Bus. Prof. Code §§ 17203 and 17208 for all monies paid by Class Members under the subscription agreements from the date four years prior to the filing of the original complaint to the date of such restitution, at rates specified by law. 67. Plaintiffs, on behalf of themselves and Class Members, requests relief as described below. SECOND CAUSE OF ACTION INJUNCTIVE RELIEF AND RESTITUTION (Cal. Bus. Prof. Code § 17535) 68. The allegations of Paragraphs 1 through 67 are realleged and incorporated herein by reference, and Plaintiffs allege this cause of action on behalf of themselves and the above-described class of similarly situated Class Members. 69. Cal. Bus. Prof. Code § 17535, et seg. (the “UCL”) allows “any person who has suffered injury in fact and has lost money or property” to prosecute a civil action for violation of the UCL. Such a person may bring such an action on behalf of himself and others similarly situated who are affected by the unlawful, unfair, or fraudulent business practices. 70. Beginning at an exact date unknown to Plaintiffs, but at least since the date four years prior to the filing of the original Complaint, and continuing to the present, Defendant has committed unfair competition and unlawful, unfair, and/or fraudulent business acts and practices as defined by the UCL, by violating Cal. Bus. Prof. Code §§ 17602 and 17603. 71. As a direct and proximate result of Defendant’s unlawful, unfair, and/or fraudulent acts and practices described herein, Plaintiffs paid money for an automatic renewal and/or continuous service plan, and Defendant has receive