CLASS ACTION COMPLAINT PAGE – 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1301 - Fifth Avenue, Suite 3401 Seattle, Washington 98101-2605 (206) 623-6501 13159 00101 of295h1350 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE ANN TALYANCICH, individually and on behalf of all others similarly situated, Plaintiff, v. MICROSOFT CORPORATION, a Washington corporation, Defendant. NO. CLASS ACTION COMPLAINT Plaintiff Ann Talyancich, by her attorneys, makes the following allegations and claims for her complaint against Defendant Microsoft Corporation. This class action is brought by Plaintiff individually and on behalf of all others similarly situated who have had their Xbox console units excluded from the Xbox LIVE service by Defendant. The following allegations are made upon information and belief, except as to allegations specifically pertaining to Plaintiff, which are made upon knowledge. Plaintiff’s information and belief is based, inter alia, on the investigation made by and through counsel. PARTIES 1. Plaintiff Ann Talyancich is a citizen of the State of California. 2. Defendant Microsoft Corporation is a Washington corporation with its principal place of business in Washington. A global provider of software and other computer products and services, Defendant does business throughout the United States of America. Case 2:12-cv-01128-JCC Document 1 Filed 06/29/12 Page 1 of 15
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1301 - Fifth Avenue, Suite 3401 Seattle, Washington 98101-2605
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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON
AT SEATTLE ANN TALYANCICH, individually and on behalf of all others similarly situated,
Plaintiff, v. MICROSOFT CORPORATION, a Washington corporation, Defendant.
NO. CLASS ACTION COMPLAINT
Plaintiff Ann Talyancich, by her attorneys, makes the following allegations and claims
for her complaint against Defendant Microsoft Corporation. This class action is brought by
Plaintiff individually and on behalf of all others similarly situated who have had their Xbox
console units excluded from the Xbox LIVE service by Defendant. The following allegations
are made upon information and belief, except as to allegations specifically pertaining to
Plaintiff, which are made upon knowledge. Plaintiff’s information and belief is based, inter
alia, on the investigation made by and through counsel.
PARTIES
1. Plaintiff Ann Talyancich is a citizen of the State of California.
2. Defendant Microsoft Corporation is a Washington corporation with its
principal place of business in Washington. A global provider of software and other computer
products and services, Defendant does business throughout the United States of America.
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JURISDICTION AND VENUE
3. This Court has jurisdiction over the parties to and the subject matter of all
causes of action asserted herein, pursuant to 28 U.S.C. § 1332 and under the Class Action
Fairness Act.
4. Venue is proper in this Court because Defendant’s headquarters is located in
this District, and Defendant conducts substantial business in this District.
STATEMENT OF FACTS
5. Defendant is the manufacturer and distributer of the Xbox 360 console and its
predecessor, the Xbox console (collectively referred to herein as “Xbox”).
6. The Xbox is a “general purpose computer” that is commonly used to access the
Internet, play video games, and access and display movies.
7. Xbox console units currently sell from approximately $199.99 for the Xbox
360 4GB Console up to approximately $449.99 for the Xbox 360 Limited Edition Kinect Star
Wars Bundle.
8. To date, in excess of 79 million Xbox console units have been sold since its
release in 2001.
9. Included with the purchase of an Xbox console unit is access to the Xbox
LIVE service (Internet connection required).
10. Xbox LIVE is an online multiplayer gaming and digital media delivery service.
11. The Xbox LIVE service is currently available in three variations: Free
(formerly known as Silver), Gold, and Family Pack (or Gold Family Pack).
12. The Xbox LIVE Free service includes the ability to “chat and text with friends
on Xbox LIVE,” “industry-leading, built-in Family Settings,” the ability to “create and
customize your Avatar,” the ability to “download new games and game add-ons,” the ability
to “watch HD movies and TV from Zune,” and the ability to “preview games with free
demos.”
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13. In addition to those benefits included with the Xbox LIVE Free service, the
Xbox LIVE Gold service includes the ability to “play Xbox 360 games online with friends,”
the ability to “instantly watch HD movies from Netflix,” the ability to “instantly watch last
night’s TV today with Hulu Plus,” the ability to view “live sports from ESPN on Xbox
LIVE,” the ability to use “Facebook and Twitter on your TV,” and the ability to listen to
“personalized music from Zune and last.fm.”
14. A one-month membership to Xbox LIVE Gold sells for approximately $14.99,
a three-month membership for approximately $24.99, and a twelve-month membership for
approximately $59.99.
15. In addition to those benefits included with the Xbox LIVE Gold service, the
Xbox LIVE Family Pack service includes “four Xbox LIVE Gold memberships for less than
the price of two,” the ability to “manage your family’s memberships and settings in the
Family Center,” the ability to “view reports on your family’s Xbox LIVE activities,” the
ability to “gift Microsoft Points Allowances to your family,” and “exclusive discounts on
family friendly games.”
16. A twelve month membership to Xbox LIVE Family Pack sells for
approximately $99.99.
17. There are currently approximately 25 to 35 million Xbox LIVE members.
18. Also available for purchase and use with the Xbox LIVE service are
“Microsoft Points” (also known as Xbox LIVE Points and Xbox Points). Microsoft Points are
“the coin of the Xbox LIVE Marketplace realm” and may be purchased directly from the
Xbox LIVE Marketplace with a credit card or from brick and mortar retail locations.
19. 400 Microsoft Points may be purchased for approximately $4.99; 800
Microsoft Points may be purchased for approximately $9.99; 1600 Microsoft Points may be
purchased for approximately $19.99; 4000 Microsoft Points may be purchased for
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approximately $49.99; and 6000 Microsoft Points may be purchased for approximately
$74.99.
20. Microsoft Points are a “stored value system” that may be used to “buy games,
add-ons, videos, TV shows, and more” in the Xbox LIVE Marketplace.
21. The Entertainment and Devices Division of Defendant, which includes the
Xbox 360 entertainment platform (along with Mediaroom and Windows Phone), had revenue
for the twelve months ending June 30, 2011, of $8.91 billion with an operating income of
$1.32 billion.
22. Defendant regularly excludes Xbox console units from the Xbox LIVE service.
23. Xbox console units display the following message after being excluded from
the Xbox LIVE service: “This console has been banned for violations of the Terms of Use.
To protect the Xbox LIVE service and its members, Microsoft does not provide details about
console bans. There is no recourse for Terms of Use violations.”
24. Defendant does not issue refunds or credits for time remaining on Xbox LIVE
memberships associated with excluded Xbox console units.
25. Defendant does not issue refunds or credits for Microsoft Points associated
with excluded Xbox console units.
26. Defendant does not issue refunds or credits for items purchased with Microsoft
Points associated with excluded Xbox console units.
27. Plaintiff Ann Talyancich is the owner of an Xbox console unit (“Talyancich
Unit”).
28. The Talyancich Unit was purchased new.
29. The Talyancich Unit’s DVD drive subsequently failed and Plaintiff Ann
Talyancich hired an independent local repairman to repair the unit by installing a new DVD
drive.
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30. In approximately April 2011, Plaintiff Ann Talyancich purchased a twelve-
month subscription to Xbox LIVE Gold that included one bonus month.
31. In approximately May 2011, Defendant installed a software update on the
Talyancich Unit.
32. After installation of the May 2011 update, and as a result of the May 2011
update, the Talyancich Unit was excluded from and unable to access the Xbox LIVE service.
33. Defendant has installed software on the Xbox console units of Plaintiff and
members of the Class that has damaged the Xbox console units of Plaintiff and members of
the Class by excluding the Xbox console units of Plaintiff and members of the Class from the
Xbox LIVE service.
34. The exclusion of the Talyancich Unit from the Xbox LIVE service by
Defendant was in reprisal for the DVD drive repair that was performed by someone other than
Defendant.
35. Since Defendant excluded the Talyancich Unit from the Xbox LIVE service,
the Talyancich Unit has been unable to access the Xbox LIVE Free service and the benefits
included with that service.
36. Plaintiff Ann Talyancich had approximately 12 months remaining on her Xbox
LIVE Gold subscription when her Xbox console unit was excluded from the Xbox LIVE
service.
37. Since Defendant excluded the Talyancich Unit from the Xbox LIVE service,
the Talyancich Unit has been unable to access the Xbox LIVE Gold service and the benefits
included with that service.
38. Defendant issued no refund or credit to Plaintiff Ann Talyancich for the time
remaining on her Xbox LIVE Gold subscription.
39. Plaintiff Ann Talyancich purchased Microsoft Points for use with the Xbox
LIVE Marketplace.
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40. Since Defendant excluded the Talyancich Unit from the Xbox LIVE service,
the Talyancich Unit has been unable to access and use the Microsoft Points Plaintiff Ann
Talyancich purchased for use with the Xbox LIVE Marketplace.
41. Since Defendant excluded the Talyancich Unit from the Xbox LIVE service,
the Talyancich Unit has been unable to access and use the items purchased by Plaintiff Ann
Talyancich from the Xbox LIVE Marketplace with Microsoft Points.
42. Defendant issued no refund or credit to Plaintiff Ann Talyancich for the
remaining unused Microsoft Points she purchased for use with the Talyancich Unit in the
Xbox LIVE Marketplace.
43. Defendant issued no refund or credit to Plaintiff Ann Talyancich for the items
she purchased from the Xbox LIVE Marketplace for use with the Talyancich Unit.
CLASS ACTION ALLEGATIONS
44. Plaintiff brings this action as a nationwide class on behalf of herself and a
Class (the “Class”) defined as follows: all persons in the United States of America and its
Territories whose Xbox consoles have been excluded from the Xbox LIVE service.
45. Numerosity.
46.
Defendant has unlawfully excluded hundreds of thousands of
Xbox console units from the Xbox LIVE service. As such, the Class consists of hundreds of
thousands of individuals and other entities, making joinder impractical. In addition, the
disposition of the Class members’ claims in a single action will provide substantial benefits to
the parties and the Court.
Commonality. Defendant has acted and failed to act on grounds generally
applicable to the Plaintiff and the other members of the Class by unlawfully excluding
hundreds of thousands of Xbox console units from the Xbox LIVE service, requiring the
Court’s imposition of uniform relief to ensure compatible standards of conduct toward the
members of the Class.
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47. There are many questions of law and fact common to the claims of Plaintiff
and the other members of the Class, and those questions predominate over any questions that
may affect individual members of the Class. Common questions for the Class include, but are
not limited to, the following:
(a) Has Defendant breached contracts with the Class members?
(b) Has Defendant been unjustly enriched at the expense of the Class
members?
(c) Is Defendant subject to liability in restitution?
(d) Has Defendant intentionally and without justification interfered with
the personal property of Plaintiff and members of the Class, thereby
depriving Plaintiff and members of the Class of the possession and use
of their personal property?
(e) Are the Class members entitled to treble damages based on the
willfulness of Defendant’s conduct?
(f) Are the Class members entitled to injunctive relief?
48. Typicality.
49.
The factual and legal bases of Defendant’s liability to Plaintiff and
to the other members of the Class are the same, resulting in injury to the Plaintiff and to all of
the other members of the Class as a result of Defendant’s conduct of unlawfully excluding
hundreds of thousands of Xbox console units from the Xbox LIVE service. Plaintiff and the
other Class members have all suffered harm and damages as a result of Defendant’s unlawful
and wrongful conduct as a result of unlawfully excluding hundreds of thousands of Xbox
console units from the Xbox LIVE service.
Adequacy of Representation. Plaintiff will fairly and adequately represent
and protect the interests of the other members of the Class. Plaintiff has retained counsel with
substantial experience in prosecuting complex litigation and class actions. Plaintiff and her
counsel are committed to vigorously prosecuting this action on behalf of the members of the
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Class, and have the financial resources to do so. Neither Plaintiff nor her counsel has any
interest adverse to those of the other members of the Class.
50. Absent a class action, most members of the Class would find the cost of
litigating their claims to be prohibitive, and will have no effective remedy. Class treatment of
common questions of law and fact is also superior to multiple individual actions or piecemeal
litigation in that it conserves the resources of the courts and the litigants, and promotes
consistency and efficiency of adjudication.
FIRST CAUSE OF ACTION Breach of Contract – Xbox Console Units
51. Plaintiff incorporates by reference the foregoing allegations contained in
paragraphs 1 through 51 as if fully set forth herein.
52. Plaintiff and members of the Class purchased their Xbox console units from
Defendant (or Defendant’s distributors, as the case may be).
53. Included with the sale of each Xbox console unit to Plaintiff and members of
the Class was access to and use of the Free Xbox LIVE service (and the benefits included
therewith).
54. Defendant excluded the Xbox console units of Plaintiff and members of the
Class from the Free Xbox LIVE service (and the benefits included therewith) thereby
breaching the Xbox console unit sale contracts between Defendant and Plaintiff and members
of the Class.
55. Plaintiff and members of the Class have been damaged by Defendant’s breach.
SECOND CAUSE OF ACTION Breach of Contract – Paid Xbox LIVE
56. Plaintiff incorporates by reference the foregoing allegations contained in
paragraphs 1 through 56 as if fully set forth herein.
57. Plaintiff and members of the Class purchased access to and use of the Paid
Xbox LIVE service (Xbox LIVE Gold service and/or Xbox LIVE Family Pack service) from
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Defendant (or Defendant’s distributors, as the case may be) for use with their Xbox console
units.
58. Defendant excluded the Xbox console units of Plaintiff and members of the
Class from the Paid Xbox LIVE service, thereby preventing Plaintiff and the Class members
from accessing and using the purchased Paid Xbox LIVE service (and the benefits included
therewith) with their Xbox console units and thereby breaching the Paid Xbox LIVE service
sale contracts between Defendant and Plaintiff and members of the Class.
59. Plaintiff and members of the Class have been damaged by Defendant’s breach.
THIRD CAUSE OF ACTION Breach of Contract – Microsoft Points
60. Plaintiff incorporates by reference the foregoing allegations contained in
paragraphs 1 through 60 as if fully set forth herein.
61. Plaintiff and members of the Class purchased Microsoft Points from Defendant
(or Defendant’s distributors, as the case may be) for use with their Xbox console units.
62. Defendant excluded the Xbox console units of Plaintiff and members of the
Class from the Xbox LIVE service, thereby preventing Plaintiff and the Class members from
using the purchased Microsoft Points with their Xbox console units and thereby breaching the
Microsoft Points sale contracts between Defendant and Plaintiff and members of the Class.
63. Plaintiff and members of the Class have been damaged by Defendant’s breach.
FOURTH CAUSE OF ACTION Unjust Enrichment, Restitution and/or Money Had and Received – Xbox Console Units
64. Plaintiff incorporates by reference the foregoing allegations contained in
paragraphs 1 through 64 as if fully set forth herein.
65. Plaintiff and members of the Class purchased their Xbox console units from
Defendant (or Defendant’s distributors, as the case may be).
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66. Included with the sale of each Xbox console unit to Plaintiff and members of
the Class was access to and use of the Free Xbox LIVE service and the benefits included with
that service.
67. Defendant excluded the Xbox console units of Plaintiff and members of the
Class from the Free Xbox LIVE service and the benefits included with that service.
68. As a result of Defendant’s actions, Plaintiff and members of the Class have
been unable to access and use the Free Xbox LIVE service (and the benefits included
therewith) purchased with each Xbox console unit.
69. Defendant received money from Plaintiff and members of the Class in
exchange for access to and use of the Free Xbox LIVE service (and the benefits included
therewith) with each Xbox console unit and retained this money after excluding the Xbox
console units of Plaintiff and members of the Class from the Free Xbox LIVE service.
70. Plaintiff and members of the Class have conferred a benefit to Defendant via
the purchase of their Xbox console units from Defendant.
71. The benefit conferred to Defendant was at the expense of Plaintiff and
members of the Class and Defendant has an appreciation or knowledge of the conferred
benefit.
72. Because Defendant excluded the Xbox console units of Plaintiff and members
of the Class from the Free Xbox LIVE service (and the benefits included therewith) it is
unjust for Defendant to retain the benefit conferred to it by Plaintiff and members of the Class
without payment or restitution from Defendant to Plaintiff and members of the Class.
73. Defendant has been unjustly enriched by excluding the Xbox console units of
Plaintiff and members of the Class from the Free Xbox LIVE service (and the benefits
included therewith) and Plaintiff and members of the Class are entitled to restitution.
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FIFTH CAUSE OF ACTION Unjust Enrichment, Restitution and/or Money Had and Received – Paid Xbox LIVE
74. Plaintiff incorporates by reference the foregoing allegations contained in
paragraphs 1 through 74 as if fully set forth herein.
75. Plaintiff and members of the Class purchased their Xbox console units from
Defendant (or Defendant’s distributors, as the case may be).
76. Plaintiff and members of the Class purchased access to and use of the Paid
Xbox LIVE service (Xbox LIVE Gold service and/or Xbox LIVE Family Pack service) from
Defendant (or Defendant’s distributors as the case may be) for use with their Xbox console
units.
77. Defendant excluded the Xbox console units of Plaintiff and members of the
Class from the Paid Xbox LIVE service and the benefits included with that service.
78. As a result of Defendant’s actions, Plaintiff and members of the Class have
been unable to access and use the Paid Xbox LIVE service (and the benefits included
therewith) that they purchased.
79. Defendant received money from Plaintiff and members of the Class in
exchange for access to and use of the Paid Xbox LIVE service (and the benefits included
therewith) and retained this money after excluding the Xbox console units of Plaintiff and
members of the Class from the Paid Xbox LIVE service.
80. Plaintiff and members of the Class have conferred a benefit to Defendant via
the purchase of their Paid Xbox LIVE service from Defendant.
81. The benefit conferred to Defendant was at the expense of Plaintiff and
members of the Class and Defendant has an appreciation or knowledge of the conferred
benefit.
82. Because Defendant excluded the Xbox console units of Plaintiff and members
of the Class from the Paid Xbox LIVE service (and the benefits included therewith) it is
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unjust for Defendant to retain the benefit conferred to it by Plaintiff and members of the Class
without payment or restitution from Defendant to Plaintiff and members of the Class.
83. Defendant has been unjustly enriched by excluding the Xbox console units of
Plaintiff and members of the Class from the Paid Xbox LIVE service (and the benefits
included therewith) and Plaintiff and members of the Class are entitled to restitution.
SIXTH CAUSE OF ACTION Unjust Enrichment, Restitution and/or Money Had and Received – Microsoft Points
84. Plaintiff incorporates by reference the foregoing allegations contained in
paragraphs 1 through 84 as if fully set forth herein.
85. Plaintiff and members of the Class purchased their Xbox console units from
Defendant (or Defendant’s distributors as the case may be).
86. Plaintiff and members of the Class purchased Microsoft Points from Defendant
(or Defendant’s distributors as the case may be) for use with their Xbox console units.
87. Defendant excluded the Xbox console units of Plaintiff and members of the
Class from the Xbox LIVE service, thereby preventing Plaintiff and the Class members from
using the purchased Microsoft Points with their Xbox console units.
88. As a result of Defendant’s actions, Plaintiff and members of the Class have
been unable to access and use their Microsoft Points.
89. Defendant received money from Plaintiff and members of the Class in
exchange for the Microsoft Points and retained this money after excluding the Xbox console
units of Plaintiff and members of the Class from the Xbox LIVE service.
90. Plaintiff and members of the Class have conferred a benefit to Defendant via
the purchase of their Microsoft Points from Defendant.
91. The benefit conferred to Defendant was at the expense of Plaintiff and
members of the Class and Defendant has an appreciation or knowledge of the conferred
benefit.
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92. Because Defendant excluded the Xbox console units of Plaintiff and members
of the Class from the Xbox LIVE service, thereby preventing Plaintiff and the Class members
from using the purchased Microsoft Points with their Xbox console units, it is unjust for
Defendant to retain the benefit conferred on it by Plaintiff and members of the Class without
payment or restitution from Defendant to Plaintiff and members of the Class.
93. Defendant has been unjustly enriched by excluding the Xbox console units of
Plaintiff and members of the Class from the Xbox LIVE service, thereby preventing Plaintiff
and the Class members from using the purchased Microsoft Points with their Xbox console
units and Plaintiff and members of the Class are entitled to restitution.
SEVENTH CAUSE OF ACTION Trespass to Chattels
94. Plaintiff incorporates by reference the foregoing allegations contained in
paragraphs 1 through 93 as if fully set forth herein.
95. The Xbox console units of Plaintiff and members of the Class are the personal
property of Plaintiff and members of the Class.
96. Defendant intentionally and without justification interfered with the Xbox
console units of Plaintiff and members of the Class by installing software on the Xbox
console units of Plaintiff and members of the Class resulting in the exclusion of the Xbox
console units of Plaintiff and members of the Class from accessing and using the Free Xbox
LIVE service (and the benefits included therewith), from accessing and using the Paid Xbox
LIVE service (and the benefits included therewith), and from accessing and using Microsoft
Points, thereby depriving Plaintiff and members of the Class of the possession and use of their
Xbox console units.
97. Defendant intentionally and without justification excluded Xbox console units
of Plaintiff and members of the Class from accessing and using the Free Xbox LIVE service
(and the benefits included therewith), from accessing and using the Paid Xbox LIVE service
(and the benefits included therewith), and from accessing and using Microsoft Points, thereby
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depriving Plaintiff and members of the Class of the possession and use of their Xbox console
units.
98. Defendant intentionally and without justification interfered with the Xbox
console units of Plaintiff and members of the Class thereby depriving Plaintiff and members
of the Class of the possession and use of their Xbox console units.
99. Plaintiff and members of the Class have been damaged by the actions of
Defendant.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff Ann Talyancich, on behalf of herself and the Class, prays for
the following relief:
A. An order certifying this case as a class action on behalf of the Class defined
above, appointing Ann Talyancich as class representative, and appointing her
counsel as class counsel;
B. An award of actual damages;
C. An award of restitution;
D. An award of punitive damages where appropriate;
E. An injunction requiring Defendant to cease excluding Xbox console units from
accessing the Xbox LIVE service;
F. An award of reasonable attorneys’ fees and costs;
G. An award of pre- and post-judgment interest, to the extent allowable; and
H. Such further and other relief the Court deems equitable and just.
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JURY DEMAND
Plaintiff requests trial by jury of all claims, pursuant to LR 38(b).
DATED this 29th day of June, 2012.
SKELLENGER BENDER, P.S. Jeffrey C. Grant, WSBA No. 11046
s/ Jeffrey C. Grant
E-mail: [email protected] Attorneys for Ann Talyancich and the Putative Class
William B. Federman Oklahoma Bar No. 2853 FEDERMAN & SHERWOOD 10205 N. Pennsylvania Avenue Oklahoma City, Oklahoma 73120 (405) 235-1560 (telephone) (405) 239-2112 (facsimile) [email protected] Cornelius P. Dukelow Oklahoma Bar No. 19086 ABINGTON COLE 320 South Boston Avenue, Suite 1705 Tulsa, Oklahoma 74103 918.588.3400 (telephone & facsimile) [email protected]
Case 2:12-cv-01128-JCC Document 1 Filed 06/29/12 Page 15 of 15
