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ADAMGUTRIDE (State Bar No. 181446)

LAWOFFICES OF ADAM GUTRIDE

835 Douglass Street

San Francisco, California 94114

Telephone: (415) 271-6469

Facsimile:  (928) 438-1285

SETH A. SAFIER (State Bar No. 197427)     

LAW OFFICES OF SETH A. SAFIER

6467 California

San Francisco, CA 94121

Telephone: (415) 336-6545

Facsimile:  (415) 876-4345

Attorneys for Plaintiff,

ORIN SAFIER

SUPERIOR COURT OFTHE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO

           COME NOW, OrinSafier, an individual, former resident of California and current resident ofNew Mexico, who brings this Class Action Complaint against Defendants, onbehalf of himself, the general public, and those similarly situated forviolations of sections 17200 and 17500et seq., of the CaliforniaBusiness and Professions Code, breach of contract, fraud, deceit and/ormisrepresentation and violation of the California Consumers Legal RemediesAct. 

           WHO ALLEGE ASFOLLOWS:

I.                  PARTIES

1.                 OrinSafier (“Plaintiff”) is, and at all times alleged in this Class Action Complaintwas, an individual, and either a California or New Mexico resident, with hisplace of residence in Placitas, New Mexico.

2.                 DefendantWestern Digital Corporation (“Western”) is a corporation duly incorporatedunder the laws of the state of Delaware, having its principal place of businessin Lake Forest, California.

3.                 Thetrue names and capacities of Defendants sued as Does 1 through 200 inclusiveare unknown to Plaintiff, who therefore sue said Defendants by such fictitiousnames pursuant to section 474 of the California Code of Civil Procedure. Plaintiff will seek leave of Court to amend this Class Action Complaint whensaid true names and capacities have been ascertained.  The Parties identifiedin paragraphs 2 through 3 of this Class Action Complaint are collectivelyreferred to hereafter as “Defendants.”

4.                 Atall times herein mentioned, each of the Defendants was the agent, servant,representative, officer, director, partner or employee of the other Defendantsand, in doing the things herein alleged, was acting within the scope and courseof his/her/its authority as such agent, servant, representative, officer,director, partner or employee, and with the permission and consent of eachDefendant.

5.                 Atall times herein mentioned, Defendants, and each of them, were members of, andengaged in, a joint venture, partnership and common enterprise, and actingwithin the course and scope of, and in pursuance of, said joint venture,partnership and common enterprise.

6.                 Atall times herein mentioned, the acts and omissions of Defendants, and each ofthem, concurred and contributed to the various acts and omissions of each andall of the other Defendants in proximately causing the injuries and damages asherein alleged.

7.                 Atall times herein mentioned, Defendants, and each of them, ratified each and everyact or omission complained of herein.  At all times herein mentioned, theDefendants, and each of them, aided and abetted the acts and omissions of eachand all of the other Defendants in proximately causing the damages, and otherinjuries, as herein alleged. 

II.               STATEMENT OF FACTS AND ALLEGATIONS

a.     Defendants Market, Advertise, Manufacture And/Or Sell Hard Disk Drive.

8.                 Defendantsare engaged in the business of manufacturing, advertising, marketing and/orselling, throughout the world, hard disk drives (“HDDs”).

9.                 HDDs are the data storage center of personal computers.  An HDD uses round, flatdisks called platters, coated on both sides with a special media materialdesigned to store information in the form of magnetic patterns.  The underlyingprinciple of hard drives--the use of magnetism to store information--is verysimilar to that used in a tape or video recorder.  An HDD stores each bit of digitaldata as a magnetized spot on the surface of a disk.  The spot represents a 0when magnetized in one orientation and a 1 when magnetized in the oppositeorientation.  

10.             Theplatters are mounted by cutting a hole in the center and stacking them onto aspindle.  The platters rotate at high speed, driven by a special spindle motorconnected to the spindle.  Electromagnetic read/write devices called heads aremounted onto sliders and used to either record information onto the disk orread information from it.  

11.             Eachsurface of each platter on the disk can hold billions of bits of data.   Theseare organized into larger "chunks" for convenience, and to allow foreasier and faster access to information.  Each platter has its informationrecorded in concentric circles called tracks.  Each track is further brokendown into smaller pieces called sectors, each of which holds 512 bytes ofinformation.  A byte is 8 bits.  A large-capacity HDD will typically containseveral 3.5-inch platters and will use both sides of each platter for storage.  

12.             HDDsare often pre-packaged or embedded in personal computers, for example, whenthey are purchased by consumers from manufacturers like Dell, Apple, IBM,Toshiba or Sony (“OEM Hard Drives”). 

13.             Whenconsumers assemble personal computers themselves or when they seek to add totheir storage capacity, they purchase new HDDs.  These (after market) hard diskdrives can either be internal or external.  Internal drives are connecteddirectly to the mother board of a computer, typically by opening the computer,connecting the internal drive and closing the computer.  External hard drivesare stand alone devices that are connected to personal computers, usuallythrough a computer’s universal serial bus (USB) port or by some other interfacesuch as a serial port.

14.             Forthe purposes of this Class Action Complaint, internal and external hard diskdrives, with the exception of OEM Hard Drives, will be collectively referred toas “hard drives,” hard disks” or “HDD(s),” unless otherwise stated orcontextually inappropriate.

15.             Asset forth above, every HDD marketed, advertised, manufactured and/or sold byDefendants has a particular capacity for storing digital information.  Thiscapacity is invariably represented, by Defendants, as a number of gigabytes or“GB”.

16.             Defendants,for example, via both online and offline channels, market, advertise, sell andmanufacture a number of HDDs including, without limitation, the 80GB WD800VEinternal hard drive and the 120GB WD1200B011 external hard drive.

b.     Defendants Knowingly and Deceptively Misrepresent StorageCapabilities Of Their HDDs, Which Deceives And Misleads Consumers.

17.             Inmarketing, advertising and/or packaging their HDDs, Defendants misrepresent thesize of the memory storage contained in the HDDs. 

18.             Forexample,Defendants--viaits websitelocated at www.wdc.com and through online and offline distributors and retailers--markets,advertises and/or sells a number of HDDs including for example and withoutlimitation the 80GB WD800VE and 120GB WD1200B011 external hard drive.  Attached hereto as Exhibit 1 and incorporated herein as if set forth in fullare true and correct copies of advertising, marketing or website materialsdisseminated by Defendants, which contain examples of the representations thatDefendants makes to the general public about the HDDs it sells.

19.             Defendantsoverstate the amount of memory available to the end user or consumer (i.e.,they overstate the amount of memory which the end user or consumer can use tostore his or her files, pictures, etc….).  For example, Defendantsmanufacture, market,advertise and/or sell the 80GB WD800VE and 120GB WD1200B011.  In actuality, Defendant’s“80GB WD800VE” only has 79,971,254,272 bytes or approximately 74.4GB of usablememory.  Defendants’ 120 GB WD1200B011 external hard drive only has120,002,150,400 bytes or approximately 111GB of usable memory.  See the Windowsproperty screens for those HDDs attached hereto as Exhibit 2.

20.             Defendantsoverstate the storage capacity of the above-mentioned products, as well as allother HDDs manufactured, marketed, advertised and/or sold by them.

21.             Asis set forth in more detail below, Plaintiff alleges that one possibleexplanation for the overstated memory in HDDs is that Defendants intentionally,misleading and deceptively employ a method of determining memory size that isinconsistent with the binary standard on which all digital files are based. There are, however, other possible explanations for the diminished accessiblestorage capacity in Defendants’ HDDs of all of which are equally as misleadingand deceptive. 

22.             Otherpossible explanations or rationales for the diminished accessible storagecapacity in Defendants’ HDDs include diskpartitioning and/or formatting, bad disksectors, pre-installed software or internal operational data storagerequirements, environmental operating conditions and/or idiosyncraticinteroperability with particular operating systems.  There may be additionalexplanations or rationales for the diminished accessible storage capacity thatare currently unknown to Plaintiff.  Regardless of the rationale orexplanation, on all Defendants’HDDs, the end user or consumer is unfairly,misleadingly and deceptively provided with less accessible storage capacitythan Defendants market, advertise or otherwise claim.

c.      Plaintiff Was Misled And Deceived By Defendants.

23.             Inor about October of 2004, Plaintiff purchased an 80GB WD800VE hard drive fromDefendant.  Plaintiff made the purchase from a local computer technician.  Thepackaging for the product stated that it contained “80GB.”  The package did notstate the actual number of bytes nor does it state that the actual memory sizemay be less.  After purchasing the product, Plaintiff tested its actual memorysize.  Plaintiff’s computer reported that the actual available memory of the “80GB”HDD was 74.4GB. 

24.             Thedifference between the represented amount of storage capacity and the actualamount of storage capacity available to the Plaintiff is not insignificant, butrather approximately 7% of the total storage capacity on Plaintiff’s HDD.  Indeed,Plaintiff could have stored approximately 80 hours of MP3 music, 160 hours of WMAmusic, 5600 digital pictures or 36,700 copies of this Class Action Complaint in.doc format on a drive with a 5.6 GB capacity.[1]

d.     Defendants’ Method Of Determining Memory Size Is InconsistentWith The Binary Standard On Which All Digital Files Are Based.

                                                             i.     The Terms “Byte,” “Kilobyte,” “Megabyte,” and “Gigabyte” AreEach Defined In Base-Two.

25.             Alldigital files consist of a series of ones and zeros, which is known as “binary”information.  The term “binary” refers to the fact that each digit can haveonly one of two values—either one or zero. 

26.             Eachone or zero in a digital file is called a “bit.”  The word “bit” stands for “binarydigit.” 

27.             Binaryinformation is the standard, because microprocessors process data by passing itthrough a series of switches stored on silicon chips.  When the microprocessorreads a “one,” the switch flips from the “off” position to the “on” position orvice-versa.  When the microprocessor reads a “zero,” the switch stays as itwas.  By passing data through millions of switches, the microprocessorprocesses the information.

28.             Thebinary system used by a microprocessor is different from the system that humansuse to process information.  People typically count in base-ten, also calledthe “decimal” system.  When doing addition, people count from 0 to 9 in the“ones” column, then 0 to 9 in the “tens” column, then 0 to 9 in the “hundreds”column.  Each column represents a factor of 10.  Thus 10 = 10¹, 100= 10², 1000 = 10³, and so on.

29.             Inbinary computing, a computer counts in base-two.  Each column goes only from 0to 1.  Thus each column represents a factor of 2, such as 2¹, 2²,2³, 2⁴, 2⁵, and so on. 

30.             Whileit may be easiest for humans to process information based on numbers inbase-ten, it is most efficient for computers to process information based onnumbers in base-two.

31.             Exceptfor theoretical prototypes, all computer/digital processors sold everywhere inthe world use binary information.  These include personal computers, PDAs,digital cameras, cellular telephones, MP3 players and all other devices thatuse HDDs.

32.             Toharness the speed of binary or base-two computing, memory storage originallywas designed in sizes that equaled an exponent of the number two. 

33.             Everygroup of eight (2³) bits was called a “byte.” 

34.             Byteswere further grouped in exponents of two.  Every group of 2¹⁰ (or1024) bytes was called a kilobyte or KB.  Every group of 2²⁰ (or1,048,576) bytes was called a megabyte or MB.  Every group of 2³⁰(or 1,073,741,824) bytes was called a gigabyte or GB.

35.             Inusing this terminology, computer architects borrowed the prefixes “kilo,”“mega” and “giga” from the International System of Units (also known as the“metric system”) but changed the meanings.  While a kilometer (km) was 1000 (10³)meters and a kilogram (kg) was 1000 (10³) grams, a kilobyte(KB) was 1024 (or 2¹⁰) bytes.  Likewise, while a megaton (mton) was1,000,000 (10⁶) tons, a megabyte (MB) was 1,048,576 (or 2²⁰)bytes.  And while a gigahertz (GHz) was 1,000,000,000 (10⁹)cyclesper second, a gigabyte (GB) was 1,073,741,824 (2³⁰) bytes. 

36.             Becausethe metric system did not include the unit “byte,” it did not define terms suchas “megabyte” and “gigabyte.”[2] The use of the prefixes “mega” or “giga” before “byte” does not make thoseterms governed by the metric system any more than it could be said that one isusing the metric system by describing a location as “10 kiloyards” away or avolume as “750 milliquarts.”  “Yard” and “quart” are (like “byte”) not metricmeasurements, so none of these terms became “metric” merely by adding theprefix such as “mega” or “giga.”  Similarly, the words “megaphone” and“megavitamin” are not “metric” terms (they do not literally mean 1 millionphones or 1 million vitamins); rather the use of the prefix “mega” isunderstood to have a different meaning in those contexts because, among otherthings, “phone” and “vitamin” are not base terms in the metric system.

                                                           ii.     Consumers Have Become Familiar With The Base-Two System InCounting Bytes.

37.             Theuse of the base-two system, and particularly the terms kilobyte (KB), megabyte(MB) and gigabyte (GB) in conjunction with this system, have become familiar toconsumers who use computers.  It is common, for example, to find a computerthat has “256MB” or “512MB” of RAM, but it would be very unusual to see a computerwith “250MB” or “500MB” of RAM.  The simple reason is that 256 and 512 arebase-two numbers (256= 2⁸, 512=2⁹), whereas 250 and 500are not.  256 MB is the same as 2²⁸ bytes and 512 MB is the same as2²⁹ bytes.  But there is no easy base-two conversion for 250MB or500 MB.

38.             Furthermore,computer users are presented with the base-two counting system whenever theylook at the size of files stored on their hard disk drive or storage medium,whether they are using the Windows, Linux, Apple or any other operatingsystems.  For example, users of the Microsoft Windows operating system (whocomprise more than 97% of all computer users) will see a list of filescontained in a particular folder, showing the total size of the folder and thefile size of each file as a number of “KB” or kilobytes.  If the user clicks onthe “properties” for a particular file, the user will then see the same sizegiven in “MB” or megabytes and “bytes.”  Each of these numbers is computedusing the base-two system.  For example, if a particular file appears in thelist as “2,088 KB,” the properties screen will show “2.03 MB (2,138,112bytes).”  The reason is that 2,138,112 bytes divided by 1024 (2¹⁰)equals 2,088 KB, and 2,088 kilobytes divided by 1024 equals 2.03 MB.  If thenumber had been computed in base-ten instead of base-two, then 2,138,122 byteswould be shown as 2,138 KB instead of 2,088 KB, and as 2.14MB instead of2.03MB. 

39.             Beyondjust becoming accustomed to the base-two system in the context of computers andrelated applications, consumers are ultimately dependent on their particularoperating systems’ calculation and representation of file size.  Indeed, forthe average consumer, there is no other way to gather such information.  So,for example, if a consumer wants to transfer a particular picture file to a CDor email a file to a friend, before doing so, consumers frequently check thefile size in their operating system to make certain that it will fit on the CDor is not too large for it to be sent or downloaded by a particular emailrecipient or account.  Additionally, consumers frequently check the space orstorage capacity remaining on their HDDs.  In short, the average consumers’understanding and measurement of storage capacity and file size is entirelypredicated on the base-two system that is, and has always been, used byoperating systems such as Windows, Mac or Linux.

                                                         iii.     The Binary Representation Of File Sizes Capacity AreEspecially Important To Someone Who Wants To Use A Hard Disk Drive.

40.              Asset forth above, all HDDs manufactured and sold by Defendants are designed towork in conjunction with personal computers. 

41.             Consumerspurchase a particular HDD only after they have made a threshold decisionregarding their desired memory size.  HDDs are priced in proportion to theirstorage capacity. 

42.             Onlyafter purchasing a HDD will a consumer learn that the actual capacity of thatHDD is less than claimed, and that therefore the card or device can hold lessdata than anticipated based on their experience and understanding of computerstorage and file size. 

e.     Defendants Know That Their Conduct Is Misleading.

43.             Defendantshave long known that the public was likely to be confused by theiroverstatement of the number of “gigabytes” or “GB” of storage in their HDDs. Defendants knew that these terms had originally been adopted in the computerindustry as base-two numbers, and that they were still in widespread use asbase-two numbers. 

                                                             i.     International Organizations Recognized The Confusion

44.             Defendantsgained further knowledge about confusion caused by the definitions of kilobyte,megabyte and gigabyte by participating in or being informed about theproceedings of the International Electrotechnical Commission (IEC) and/or theInstitute for Electrical and Electronics Engineers (IEEE).

45.             TheIEC and IEEE are organizations for worldwide standardization in electronics andelectrotechnology.  In December 1998, the IEC recognized the confusion as tothe meaning of terms like “kilobyte” and “megabyte” and attempted to address itby approving an international standard for prefixes for binary multiples foruse in the fields of data storage, processing and transmission.  Over the nextfour years, the IEEE addressed the same confusion and attempted to address itby approving a draft standard, and later a trial-use standard, to the sameeffect.

46.             SomeDefendants are members of the IEC and/or the IEEE and/or participated in thediscussions leading up to the adoption of these standards. 

47.             Thestandards recommended by the IEC and the trial-use standards recommended by theIEEE provide that the measurement 2¹⁰ bytes, which had previouslybeen known as a kilobyte, should henceforth be called “kibibyte.”  Similarly,the measurement 2²⁰ bytes, which had previously been known as amegabyte,should henceforth be called a “mebibyte.”  Likewise, the measurement 2³⁰bytes, which had previously been known as a gigabyte, should henceforth becalled a “gibibyte.”

48.             TheIEC standard and IEEE trial-use standards also provided that the termskilobyte, megabyte, and gigabyte should be redefined to mean 10³, 10⁶and 10⁹bytes, respectively, to bring the prefixes “kilo,”“mega,” and “giga” before “byte” in line with the SI standard definitions forthose prefixes, as used in words like kilogram or kilometer or megaton.

                                                           ii.     Defendants Have Not Adopted The Standards

49.             TheIEC standard and IEEE trial-use standard have never been uniformly adopted byDefendants.  Instead, the base-two computations are still widely usedthroughout the industry including by Defendants themselves, even in the contextof advertising, marketing and selling HDDs. 

50.             Inaddition, Microsoft Corporation continues to compute file size using the binarystandard.  Microsoft Corporation is by far the world’s largest computer-relatedcompany; it makes an operating system used by more than 97% of computer usersas well as many leading applications programs.  In the technical supportsection of Microsoft’s website, it explains that “[t]o convert [from kilobytes]to megabytes, divide by 1024 . . . .  There are 1024 bytesin a kilobyte, not 1000.”  See http://support.microsoft.com/default.aspx?scid=
http://support.microsoft.com:80/support/kb/articles/Q121/8/39.asp&NoWebContent=1,a true and correct copy of which is attached hereto as Exhibit 3.

51.             Incomputing the size of RAM, computer and data storage manufacturers anddistributors, including Defendants, always use the base-two counting systeminstead of the base-ten counting system.  One megabyte of RAM is always 2²⁰bytes (1,048,576 bytes), not 10⁶ bytes (1,000,000 bytes).  One gigabyteof RAM is always 2³⁰ bytes ( bytes), (1,073,741,824 bytes), not 10⁹bytes (1,000,000,000 bytes).

52.               Atthe same time, in marketing HDDs, Defendants state the size in gigabytes thatdo not provide the full number of gigabytes that would be required by thebase-two system.  Defendants do not inform consumers that two differentstandards are being used, nor do they say that a particular number of gigabytesof memory is fewer bytes than the same number of number of megabytes orgigabytes of RAM or blank media.

53.             Ingeneral parlance about computers and file storage, the terms “kilobyte,”“megabyte” and “gigabyte” are still defined primarily as base-two numbers, notbase-ten numbers.  For example, the Free On-line Dictionary of Computing(http://foldoc.doc.ic.ac.uk/foldoc/index.html) defines “megabyte” as “(MB,colloquially ‘meg’) 2^20 = 1,048,576 bytes = 1024 kilobytes.  1024 megabytesare one gigabyte.”  American Heritage Dictionary gives the primary definitionof megabyte” as “1.  A unit of computer memory or data storage capacity equalto 1,048,576 (2²⁰) bytes.”  The website www.dictionary.com providesthe same primary definition.

54.             Theindustry reaction to the IEC standards—which has been largely to ignore them—isperhaps best reflected by the response of a spokesman for Dell ComputerCompany.  When told of the standards, he replied “Are you joking with me?” SeeMichael Stroh, “Have a kibibyte with your PERSONAL COMPUTER,”Baltimore Sun. March 15, 1999, p.1C. 

55.             Defendantshave not engaged in any systematic efforts to clarify their definitions of theterms megabyte and gigabyte or to educate consumers about the IEC standards. Rather, Defendants systematic efforts have been to mislead and deceiveconsumers into thinking that HDD memory capacities are great than they actuallyare.

56.             Defendantshave also not provided consumers with any disclaimer or explanation that intendto use the terms “gigabyte” or “GB” to mean something less than 1,073,741,824bytes in their HDDs. 

f.       Defendants’ Conduct Is Intentional And Leaves ConsumersUnprotected.

57.             Consumerscannot know the actual number of bytes of storage capacity in the HDD productssold by Defendants unless they purchase the products, unpack them, connect themto their personal computers, and then view the “properties” of the device ontheir screen.

g.     Defendants’ Misleading Conduct Leads To Significant Losses ByConsumers Nationwide And Harms Competitors.
 

58.             Asset forth above, Defendants overstate the storage capacity of their HDDs.

59.             IfDefendants disclosed the true storage size of their HDDs, the HDDs would nothave been purchased, or if purchased, the purchase prices would have beenlower.  The amounts overpaid to each Defendant can be computed by, among otherthings, comparing the prices that Defendants charges for different sized HDDs,which reflects their incremental price for each additional unit of memorystorage.

60.             Defendants’conduct unfairly disadvantages those competitors who more accurately disclosethe number of bytes, kilobytes, megabytes and/or gigabytes in their HDDs.  Forexample, in its website marketing of its HDDs with “250GB” of storage, LaCieUSA, Inc., on of Defendants’ competitors, provides the following disclaimer: “1gigabyte = 1,000,000,000 bytes. Once formatted, the actual available storagecapacity varies depending on operating environment.”  A true and correct copyof that webpage is attached hereto as Exhibit 4. 

61.             Additionally,virtually all computer manufacturers that sell OEM Hard Drives include adisclaimer regarding storage capacity.  For example, Dell Computer Corporation,states,“[f]orhard drives, GB means 1 billion bytes; actual capacity varies with preloadedmaterial and operating environment and will be less.”  Hewlett Packard states,“1GB = one billion bytes when referring to hard drive capacity. Actualformatted capacity is less.” And, IBM states, “[f]or hard drive, GB=billionbytes. Accessible capacity is less; up to 4GB is service partition.” True and correct copiesof those webpages are attached hereto as Exhibit 5. 

62.             Thelack of similar disclosures from Defendants makes their conduct even moremisleading, in that it causes consumers to believe that a 250GB sold by LaCieUSA, Inc. has less “actual usable capacity” than a 250GB device sold byDefendants. 

63.             Infact, virtually all HDD manufacturers, including Defendants’ closestcompetitors, iOmega Corporation and Maxtor Corporation, include suchdisclaimers on their websites and packaging.  True and correct copies of thosewebpages containing disclaimers are attached hereto as Exhibit 6.

64.             Theabsence of such a disclosure on Defendants’ marketing, advertisements, websitesand/or packaging further deceives, misleads and confuses consumers. 

65.             Defendants intentionally target their false,deceptive and misleading advertising and marketing materials to users of thepersonal computersbyadvertising on major Internet sites andby posting marketing materials at their own Internet sites, in their stores andin print, television and radio media nationwide.

III.            JURISDICTION AND VENUE

66.             Thisaction is brought by Plaintiff pursuant,inter alia, to the CaliforniaBusiness and Professions Code, Sections 17200et. seq.  Plaintiff andDefendants are “persons” within the meaning of the California Business andProfessions Code, Sections 17201.  Plaintiff brings this action by, for and onbehalf of the general public and the public interest of the State of California.

67.             Plaintiffis and at all times relevant to this action has been a resident of the city of San Carlos, California and/or Placitas, New Mexico.

68.             Defendantshave solicited more potential customers for HDDs and sold more HDDs in California than in any other state in the United States.

69.             Defendantshave their principal places of business in California. 

70.             Defendantsare citizens of California. 

71.             Theinjuries, damages and/or harm upon which this action is based, occurred orarose out of activities engaged in by Defendants within, and affecting, theState of California. 

72.             Defendantshave engaged, and continue to engage, in substantial and continuous businesspractices in the State of California. 

73.             Assuch, Plaintiff alleges that jurisdiction and venue is proper in this Court.

IV.             CLASS ALLEGATIONS

74.             Plaintiffbrings this action against Defendants on behalf of himself and all otherssimilarly situated, as a class action pursuant to section 382 of the CaliforniaCode of Civil Procedure.  The class or classes that Plaintiff seek to representare composed of and defined as follows:

All persons who, or at any time within the four years preceding the filingof this Class Action Complaint, purchased any HDD that was manufactured,distributed marketed or sold by Defendants.

For purposes of this Class Action Complaint, phrase“Class Members” shall refer collectively to all members of these classes,including the named Plaintiff.

75.             Thisaction has been brought and may properly be maintained as a class actionagainst the Defendants pursuant to the provisions of California Code of CivilProcedure section 382 because there is a well-defined community of interest inthe litigation and the proposed class is easily ascertainable:

76.             Numerosity:Plaintiff does not know the exact size of the class, but it is estimated thatthe class is composed of more than 10,000 persons.  Furthermore, even ifsubclasses need to be created for the consumers of one or more product(s) orone or more Defendant(s), it is estimated that each subclass would havethousands of members.  The persons in the class are so numerous that thejoinder of all such persons is impracticable and the disposition of theirclaims in a class action rather than in individual actions will benefit theparties and the courts.

77.             CommonQuestions Predominate: This action involves common questions of law and fact tothe potential class because each Class Member’s claim derives from the sameallegedly false, misleading, deceptive and/or unfair representations, inadvertising and labeling of HDDs, that those products have more storagecapacity than they actually do.  The common questions of law and fact involvedpredominate over questions that affect only one product, one Defendant, orindividual Class Members.  Thus, proof of a common or single set of facts willestablish the right of each member of the class to recover.  Among thequestions of law and fact common to the class are:

a.      Whether Defendants’ advertising and labeling of their HDDs is false,deceptive, misleading and/or unfair. 

b.     Whether Defendants breached their contract with the Plaintiff and thosesimilarly situated.

c.      Whether Defendant violated the California Consumers Legal Remedies Act.

d.     The scope of injunctive relief that should be imposed against Defendantsto prevent such conduct in the future. 

78.             Typicality:Plaintiff’s claims are typical of the class because he purchased an HDDmanufactured by Defendants in a typical retail consumer process, and thatproduct was advertised, labeled, and operated in substantially the same fashionas those purchased by all Class Members.  Defendants’ advertising and marketingmaterials for HDDs in the United States contain substantially the samemisrepresentations described herein irrespective of the state in which theywere distributed.  Thus, Plaintiff and Class Members sustained the sameinjuries and damages arising out of Defendants’ conduct in violation of California law and other similar statutes nationwide.  The injuries and damages of eachClass Member were caused directly by Defendants’ wrongful conduct in violationof law as alleged herein. 

79.             Adequacy:Plaintiff will fairly and adequately protect the interests of all Class Membersbecause it is in his best interests to prosecute the claims alleged herein toobtain full compensation due to him for the illegal conduct of which hecomplains.  Plaintiff also has no interests that conflict with or areantagonistic to the interests of Class Members.  Plaintiff has retained highlycompetent and experienced class action attorneys to represent his interests andthat of the class.  No conflict of interest exists between Plaintiff and ClassMembers hereby, because all questions of law and fact regarding liability ofDefendants are common to Class Members and predominate over any individualissues that may exist, such that by prevailing on their own claim, Plaintiffnecessarily will establish Defendants’ liability to all Class Members.  Plaintiffand his counsel have the necessary financial resources to adequately andvigorously litigate this class action, and Plaintiff and counsel are aware oftheir fiduciary responsibilities to the Class Members and are determined todiligently discharge those duties by vigorously seeking the maximum possible recoveryfor Class Members. 

80.             Superiority:There is no plain, speedy, or adequate remedy other than by maintenance of thisclass action.  The prosecution of individual remedies by members of the classwill tend to establish inconsistent standards of conduct for the Defendants andresult in the impairment of Class Members’ rights and the disposition of theirinterests through actions to which they were not parties.  Class actiontreatment will permit a large number of similarly situated persons to prosecutetheir common claims in a single forum simultaneously, efficiently, and withoutthe unnecessary duplication of effort and expense that numerous individualactions world engender.  Furthermore, as the damages suffered by each individualmember of the class may be relatively small, the expenses and burden ofindividual litigation would make it difficult or impossible for individualmembers of the class to redress the wrongs done to them, while an importantpublic interest will be served by addressing the matter as a class action.

81. Nexus to California.  All of the Defendants’ principal places of business are in California. Plaintiff is also informed and believe and thereupon alleges that the majority,if not all, of the business practices and marketing described above weredesigned in California and implemented here and/or nationwide at the directionof persons employed by Defendants in California.  The State of California has a special interest in regulating the affairs of corporations that are basedhere and persons who live here.  The advertising and marketing materialsdistributed throughout the United States by Defendants are substantiallyidentical with respect to the misrepresentations complained of herein. Accordingly, there is a substantial nexus between Defendants’ unlawful behaviorand California such that the California courts should take cognizance of thisaction on behalf of a class of individuals who reside throughout the United States.

82.             Plaintiffis unaware of any difficulties that are likely to be encountered in themanagement of this action that would preclude its maintenance as a classaction. 

V.                PRIVATE ATTORNEY GENERAL ALLEGATIONS

83.             Plaintiffbringsthis action against allDefendants on behalf of himself, those similarly situated, and the generalpublic, under Business and Professions Code sections 17200 et seq., seekingequitable and injunctive relief for the unfair trade practices describedherein.

VI.             ALLEGATIONS RELATING TO THE STATUTE OF LIMITATIONS

84.             Thestatutes of limitations applicable to the causes of actions stated herein havebeen tolled since the filing of Lazar et al v. Seagate Technology LLC, SanFrancisco Superior Court Case No. CGC 05-439700, on March 22, 2005. 

VII.          BASIS FOR ALLEGATIONS

85.             Allprior paragraphs of this Class Action Complaint are alleged on the basis ofinformation and belief, with the exception of paragraphs 1 and 67.

VIII.       CAUSES OF ACTION

PLAINTIFF’S FIRST CAUSE OF ACTION

(False, Deceptive and/or Misleading Advertising, Businessand Professions Code § 17500, et seq.)

86.             Plaintiffrealleges and incorporates by reference all prior paragraphs of this Class ActionComplaint as if set forth herein.

87.             Inor around October 2004, Plaintiff lost money or property when he purchased anHDD, manufactured by Defendants, whose available storage capacity was less thanDefendants had represented.

88.             Beginningat an exact date unknown to Plaintiff, but within three (3) years preceding thefiling of this Class Action Complaint, Defendants have made, and continue tomake, untrue, false, deceptive or misleading statements and material omissionsin connection with the advertising, sale and marketing of their HDDs throughoutthe nation, State of California and the City of San Francisco.

89.             Defendantshave made, and continue to make untrue, false, deceptive or misleadingstatements and misrepresentations, misstatements and material omissionsregarding the storage capacity of their HDDs.  Namely, Defendants have made,and continue to make, misrepresentations (of material omission and commission)that those HDDs have files storage or memory capacities approximately 5% to 7%larger than their actual capacities.

90.             Atall times mentioned herein, Defendants knew, or by the exercise of reasonablecare, should have known that these and other statements and omissions werefalse, deceptive, untrue or misleading.

91.             Byengaging in the foregoing acts and practices with the intent to inducePlaintiff, Class Members and members of the general public to purchase their HDDs,in lieu of other products including those of their competitors, Defendants havecommitted, and continue to commit, false, deceptive and misleading advertising,as defined by the California Business and Professions Code, section 17500,etseq. 

92.             Plaintiff,Class Members andother members of the general public are in current and ongoing need ofprotection from the untrue, false, deceptive or misleading advertisements ofDefendants.

93. The aforementionedpractices, which Defendants have used, and continue to use, to theirsignificant financial gain, also constitute unlawful competition and provide anunlawful advantage over Defendants’ competitors as well as injury in fact tothe general public and the loss of money and property to Plaintiff, ClassMembers and the general public. 

94. Plaintiff is informedand believes, and thereupon alleges, that the general public is likely to bedeceived by Defendants’ practices set forth above.

95. Plaintiff seeks, onbehalf of the general public and those similarly situated, full restitution anddisgorgement of monies, as necessary and according to proof, to restore any andall monies acquired by Defendants by means of the unfair and/or deceptive tradepractices complained of herein. 

96. Plaintiff seeks, onbehalf of the general public and those similarly situated, an injunction to prohibitDefendants from continuing to engage in the unfair trade practices complainedof herein.  The restitution includes all amounts, paid and unpaid,obtained by Defendants using the tactics described herein, including interestthereon.  The acts complained of herein occurred, at least in part, withinthree (3) years preceding the filing of this Class Action Complaint.

97. Plaintiff, Class Membersand other members of the general public are further entitled to and do seekboth a declaration that the above-described trade practices are unfair,unlawful and/or fraudulent and injunctive relief restraining Defendants fromengaging in any of such deceptive, unfair and/or unlawful trade practices inthe future.  Such misconduct by Defendants, unless and until enjoined andrestrained by order of this Court, will continue to cause injury in fact to thegeneral public and the loss of money and property in that the Defendants willcontinue to violate these California laws, unless specifically ordered tocomply with the same.  This expectation of future violations will requirecurrent and future customers to repeatedly and continuously seek legal redressin order to recoup monies paid to Defendants to which Defendants are notentitled.  Plaintiff, Class Members and other members of the generalpublic have no other adequate remedy at law to ensure future compliance withthe California Business and Professions Code alleged to have been violatedherein.

98. As a direct andproximate result of such actions, Plaintiff, Class Members and other members ofthe general public have suffered, and continue to suffer, injury in fact andhave lost money and or property as a result of such deceptive, unfair and/orunlawful trade practices and unfair competition in an amount which will be provenat trial, but which is in excess of the jurisdictional minimum of this Court.

99. As a direct andproximate result of such actions, Defendants have enjoyed, and continue toenjoy, significant financial gain in an amount which will be proven at trial,but which is in excess of the jurisdictional minimum of this Court.

PLAINTIFF’S SECOND CAUSE OF ACTION
 (Unfair, Unlawful and Deceptive Trade Practices, Business and Professions Code§ 17200,et seq.)

100.         Plaintiffrealleges and incorporates by reference all prior paragraphs of this Class ActionComplaint as if set forth herein.

101.         Beginningat an exact date unknown to Plaintiff, but within four (4) years preceding thefiling of this Class Action Complaint, and at all times mentioned herein,Defendants have engaged, and continue to engage, in unfair, unlawful anddeceptive trade practices nationwide by engaging in the misrepresentation,false, misleading and/or deceptive advertising and marketing outlined above, inparticular by falsely, deceptively and/or unfairly claiming that their HDDshave, and had, storage capacities larger than they actually do and did. 

102.         Defendantsknowingly and intentionally misrepresent the storage capacity of their HDDs. 

103.         Defendantsengage in these unfair practices to increase their profits on the HDDs thatthey sell as well as to force consumers to purchase memory storage upgrades ornew HDDs at an additional charge.  As such, Defendants have engaged in unlawfultrade practices, as defined and prohibited by section 17200, et seq. of theCalifornia Business and Professions Code.

104.         Defendantspurposely fail to disclose, in their advertising and marketing, the way inwhich they determine the storage capacity of their HDDs or that such storagemay actually be less.

105.         Theaforementioned practices, which Defendants have used, and continue to use, totheir significant financial gain, also constitute unlawful competition andprovide an unlawful advantage over Defendants’ competitors as well as injury infact to the general public and the loss of money and property Plaintiff, thosesimilarly situated and to the general public. 

106.         Plaintiffis informed and believes, and thereupon alleges, that the general public islikely to be deceived by Defendants’ practices set forth above.

107.         Plaintiffseeks, on behalf of the general public and those similarly situated, fullrestitution and disgorgement of monies, as necessary and according to proof, torestore any and all monies acquired by Defendants by means of the unfair and/ordeceptive trade practices complained of herein. 

108.         Plaintiffseeks, on behalf of the general public and those similarly situated, aninjunction to prohibit Defendants from continuing to engage in the unfair tradepractices complained of herein.  The restitution includes all amounts,paid and unpaid, obtained by Defendants using the tactics described herein,including interest thereon.  The acts complained of herein occurred, atleast in part, within four (4) years preceding the filing of the Complaint inthis Action and/or this Class Action Complaint.

109.         Plaintiff,Class Members and other members of the general public are further entitled toand do seek both a declaration that the above-described trade practices areunfair, unlawful and/or fraudulent and injunctive relief restraining Defendantsfrom engaging in any of such deceptive, unfair and/or unlawful trade practicesin the future.  Such misconduct by Defendants, unless and until enjoinedand restrained by order of this Court, will continue to cause injury in fact tothe general public and the loss of money and property in that the Defendantswill continue to violate these California laws, unless specifically ordered tocomply with the same.  This expectation of future violations will requirecurrent and future customers to repeatedly and continuously seek legal redressin order to recoup monies paid to Defendants to which Defendants are notentitled.  Plaintiff, Class Members and other members of the generalpublic have no other adequate remedy at law to ensure future compliance withthe California Business and Professions Code alleged to have been violatedherein.

110.         As adirect and proximate result of such actions, Plaintiff, Class Members and othermembers of the general public have suffered, and continue to suffer, injury infact and have lost money and or property as a result of such deceptive, unfairand/or unlawful trade practices and unfair competition in an amount which willbe proven at trial, but which is in excess of the jurisdictional minimum ofthis Court.

111.         As adirect and proximate result of such actions, Defendants have enjoyed, andcontinue to enjoy, significant financial gain in an amount which will be provenat trial, but which is in excess of the jurisdictional minimum of this Court.

PLAINTIFF’STHIRD CAUSE OF ACTION

(Breach of Written, Oral and/or Implied In Fact Contract)

112.         Plaintiffrealleges and incorporates by this referenceall prior paragraphsof this Class ActionComplaint as if set forth herein.

113.         Onor about October of 2004, Plaintiff entered into a written, oral and/or impliedin fact contract or agreement in which Plaintiff agreed to purchase andDefendants agreed to sell to PlaintiffWD800VE HDD having 80GB of storage capacity.  Similarlysituated individuals nationwide have entered into substantially similarcontracts with Defendants before and since that time.  The operative terms ofthe contract or agreement between Defendants and Plaintiff were that Defendantswould provide, and Plaintiff would purchase, an HDD containing 80GB of storagecapacity.  The terms were stated in writing on the package of the productand in associated marketing materials for it including Defendants’website.   The term can also be implied from the conduct ofPlaintiff, those similarly situated, and Defendants.

114.         As adirect and proximate result of the breaches, Plaintiff, and those similarlysituated, have suffered, and continues to suffer, damages in an amount whichwill be proven at trial, but which are in excess of the jurisdictional minimum of this Court.

PLAINTIFF’SFOURTH CAUSE OF ACTION

 (Fraud, Deceit and/orMisrepresentation)

115.         Plaintiffrealleges and incorporates by reference paragraphsall prior paragraphs ofthis Class Action Complaint as if set forth herein.

116.         Onor about October 2004 and on numerous occasions since and prior to thoseoccasions, Defendants have mademisrepresentations regarding the file storagecapacity of their HDDs as stated herein. 

117.         Defendantsmade such misrepresentations with full knowledge that such statements were, andare, in fact, fraudulent, misrepresentative, false and/or deceptive.

118.         Inaddition to the affirmative misrepresentation and willful deception describedin the preceding paragraph, Defendants have intentionally deceived, andcontinue to deceive, Plaintiff and Class Members in orderto profit as well as tocompel them to purchase additional HDDs sold by them.

119.         Theseaforementioned misrepresentations or fraudulent, deceptive, or false statementsand omissions concerned material facts that were essential to the analysisundertaken by Plaintiff and Class Members regarding whether to purchase a HDD. 

120.         Plaintiffand Class Members would have acted differently had he and they not been misled,but instead been informed of the true storage capacities of the HDD that he andthey purchased.

121.         Defendantseach had a duty, including a fiduciary duty, to inform Plaintiff and ClassMembers of the true storage capacity and/or Defendants’ method of calculatingthe storage capacity of the HDDs that they were offering for sale.  In not soinforming Plaintiff and Class Members, Defendants breached these duties. Defendants also gained financially from, and as a result of, their breaches.

122.         Byand through such fraudulent statements, misrepresentations and/or omissions,Defendants intended to induce Plaintiff and Class Members to alter their positionto their injury.

123.         Plaintiffand Class Members justifiably and reasonably relied on Defendants’misrepresentations, and, as such, were damaged by Defendants. 

124.         As adirect and proximate result of Defendants’ misrepresentations, Plaintiff andClass Members at a minimum have suffered damages in an amount which at leastequals the value of the missing storage capacity, as described above.  Theexact amount of this amount will be proven at trial, but is in excess of thejurisdictional minimum of this Court.

PLAINTIFF’SFIFTH CAUSE OF ACTION

 (Violation of the Consumers Legal Remedies Act, California Civil Code § 1750,et seq.)

125.      Plaintiff realleges andincorporateby reference all prior paragraphs of this Class Action Complaint as set forthherein.

126.      This cause of action isbrought pursuant to the California Consumers Legal Remedies Act, CaliforniaCivil Code § 1750,et seq. (“CLRA”).

127.      Defendants’ actions,representations and conduct has violated, and continue to violate the CLRA,because they extend to transactions that are intended to result, or which haveresulted, in the sale or lease of goods or services to consumers. 

128.      Plaintiff and other Class Membersare “consumers” as that term is defined by the CLRA in California Civil Code §1761(d).

129.      The HDDs that Plaintiff(and others similarly situated Class Members) purchased, and now own, fromDefendants were “goods” within the meaning of California Civil Code §1761(a).  

130.      By engaging in theactions, representations and conduct set forth in this Class Action Complaint,Defendants have violated, and continue to violate, § 1770(a)(5) of the CLRA by“[r]epresenting that [their] goods have sponsorship, approval, characteristics,ingredients, uses, benefits, or quantities which they do not have.” Additionally, Defendants have violated the CLRA by representing that theirproducts are of a particular standard, quality, or grade that they are not, andby advertising, as set forth above, their products with intent to sell themwith a certain accessible storage capacity when such products do not providethat storage capacity to the end user or consumer.  (See California Civil Code§§ 1770(a)(5) and (7), respectively.)

131.      Pursuant to CaliforniaCivil Code § 1780(a)(3), Plaintiff, on behalf of himself and similarly situatedClass Members, seek compensatory damages, punitive damages and restitution ofany ill-gotten gains due to Defendants’ acts and practices.  Plaintiff alsorequests that this Court award them his costs and reasonable attorneys’ feespursuant to California Civil Code § 1780(d). 

132.      Plaintiff further request thatthis Court enjoin Defendants from continuing to employ the unlawful methods,acts and practices alleged herein pursuant to California Civil Code §1780(a)(2).  If Defendants are not restrained from engaging in these types ofpractices in the future, Plaintiff, Class Members and other members of thegeneral public will continue to suffer harm.

133.      On March 22, 2005, pursuant to California Civil Code § 1782(a), Plaintiff served Defendants with noticeregarding their unlawful practices and a demand to correct, repair, replace orotherwise rectify such unlawful practices.  Defendants did not take correctiveaction.

134.         Pursuantto California Civil Code § 1780(a)(3), Plaintiff, on behalf of himself andsimilarly situated Class Members, seeks compensatory damages, punitive damagesand restitution of any ill-gotten gains due to Defendants’ acts and practices. Plaintiff also requests that this Court award him his costs and reasonableattorneys’ fees pursuant to California Civil Code § 1780(d).  Plaintiff furtherrequests that this Court enjoin Defendants from continuing to employ theunlawful methods, acts and practices alleged herein pursuant to CaliforniaCivil Code § 1780(a)(2).  If Defendants are not restrained from engaging inthese types of practices in the future, Plaintiff, Class Members and othermembers of the general public will continue to suffer harm.

IX.             PRAYER FOR RELIEF

            WHEREFORE, Plaintiff prays forjudgment as follows:

            A.        On Causesof Action Number 1 and 2 against Defendants:

1.     Forrestitution and disgorgement pursuant to, without limitation, the CaliforniaBusiness & Professions Code §§ 17200,et seq. and 17500,et seq;and

2.     Forinjunctive relief pursuant to, without limitation, the California Business& Professions Code §§ 17200,et seqand 17500,et seq;

B.         OnCause of Action Number 3 against Defendants:  An award of compensatory damages,the amount of which is to be determined at trial;

C.        On Cause of Action Number 4 against Defendants:

1.     Anaward of compensatory damages, the amount of which is to be determined attrial; and

2.     Forpunitive damages according to proof;

D.        On Cause of Action Number 5 against Defendants:

1.  For the greater of actual or compensatory damages according toproof or $1000 pursuant to California Civil Code section 1780; and

2.   Forrestitution and injunctive relief pursuant to California Civil Code section1780; and

3.   Forpunitive damages according to proof pursuant to California Civil Code section1780; and

4.   For anyClass Member who is a senior citizen or a disabled person, an award of fivethousand dollars ($5,000);

E.         On All causes of action against allDefendants:  

1.   Forreasonable attorneys’ fees according to proof pursuant to, without limitation,the California Code of Civil Procedure § 1021.5; and

2.   For costsof suit incurred; and

3.     Forsuch further relief as this Court may deem just and proper.

Dated:  March 29, 2006

            RespectfullySubmitted,

            ADAMGUTRIDE   

            SETH A.SAFIER

            _______________________

            Seth A.Safier, Esq.

                                                                                    Attorneysfor Plaintiff, Orin Safier