MICHAEL P. VERNA (State Bar No. 84070)
RICHARD A. ERGO (State Bar No. 110487)
JAY P. RENNEISEN (State Bar No. 173531)
KENNETH G. JONES (State Bar No. 196868)
BOWLES & VERNA
2121 N. California Boulevard, Suite 875
Walnut Creek, California 94596
Telephone: (925) 935-3300
Facsimile: (925) 935-0371
Attorneys for Plaintiff

Plaintiff TOM JOHNSON ("Plaintiff"), on behalf of himself and the California general public, for his complaint against defendants CIRCUIT CITY STORES, INC., a Virginia corporation, FRY’S ELECTRONICS, INC., a California Corporation, THE GOOD GUYS, INC., a California Corporation, COMPUSA, INC., a Delaware corporation, COMPUSA STORES, a Texas limited partnership, OFFICE DEPOT, INC., a Delaware corporation, STAPLES, INC., a Delaware corporation, OFFICEMAX, INC., an Ohio Corporation, and DOES 1 through 250, inclusive ("Defendants") alleges as follows:

1. Plaintiff brings this action to enjoin and redress the unlawful, unfair and deceptive sales practices in the sale of defective computer hardware and software products, and the sale of unnecessary Year 2000 upgrades or "fixes" which Defendants, and each of them, have sold, and continue to sell, to consumers throughout California. Defendants, and each of them, have sold, and continue to sell, computer hardware and software products that are materially defective in that they will not function properly with regard to dates, including but not limited to, after December 31, 1999. Further, Defendants are misrepresenting, and/or failing to disclose, the Year 2000 capabilities of the products they sell, and have misrepresented, and/or failed to disclose, the Year 2000 capabilities of the products that they have sold in the past.

Plaintiff, on behalf of himself and the California general public, seeks injunctive relief to rectify this serious problem by, among other things, requiring Defendants to disclose to past, present and future customers (1) that Defendants have sold non-Year 2000 compliant products, (2) how to determine if their products are non-Year 2000 compliant, and (3) how they can remedy the problem prior to experiencing malfunctions.

2. Plaintiff TOM JOHNSON is a California resident and currently resides in Concord, California. Plaintiff TOM JOHNSON also brings this action on behalf of the California general public pursuant to Business and Professions Code §17204.

3. Defendant CIRCUIT CITY STORES, INC., is a Virginia corporation which does business in California, including, but not limited to, in Contra Costa County. The acts and omissions hereinafter alleged took place in, among other places, one or more stores owned and operated by CIRCUIT CITY STORES, INC., in Contra Costa County.

4. Defendant FRY’S ELECTRONICS, INC., is a California corporation which does business in California.

5. Defendant THE GOOD GUYS, INC., is a California corporation which does business in California, including, but not limited to, in Contra Costa County. The acts and omissions hereinafter alleged took place in, among other places, one or more stores owned and operated by THE GOOD GUYS, INC., in Contra Costa County.

6. Defendant COMPUSA, INC., is a Delaware corporation which does business in California, including, but not limited to, in Contra Costa County. The acts and omissions hereinafter alleged took place in, among other places, one or more stores owned and operated by COMPUSA, INC., in Contra Costa County.

7. Defendant COMPUSA STORES, is a Texas limited partnership which does business in California, including, but not limited to, in Contra Costa County. The acts and omissions hereinafter alleged took place in, among other places, one or more stores owned and operated by COMPUSA STORES, in Contra Costa County.

8. Defendant OFFICE DEPOT, INC., is a Delaware corporation which does business in California, including, but not limited to, in Contra Costa County. The acts and omissions hereinafter alleged took place in, among other places, one or more stores owned and operated by OFFICE DEPOT, INC., in Contra Costa County.

9. Defendant STAPLES, INC., is a Delaware corporation which does business in California, including, but not limited to, in Contra Costa County. The acts and omissions hereinafter alleged, took place in, among other places, one or more stores owned and operated by STAPLES, INC., in Contra Costa County.

10. Defendant OFFICEMAX, INC., is an Ohio corporation which does business in California.

11. The acts and omissions of Defendants, hereinafter alleged, have all taken place within four years of the filing of this complaint.

12. All of the Defendants have systematically and continually marketed and sold computer hardware and software throughout California during the relevant period. The computer hardware and software products have been, and are, sold by Defendants throughout California in well over one hundred retail stores. On information and belief, Defendants’ annual revenues from sales of their computer hardware and software products in California total in the millions of dollars.

13. Plaintiff is ignorant of the true names and capacities of Defendants sued herein as DOES 1 through 250, inclusive, and therefore sues these Defendants by such fictitious names. Plaintiff will amend this complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes, and thereon alleges, that each of the fictitiously named Defendants is responsible in some manner for the occurrences herein alleged, and that Plaintiff’s injuries herein alleged were proximately caused by their conduct.

14. This Court has jurisdiction over all causes of action asserted herein pursuant to the California Constitution, Article VI, §10, because this case is a cause not given by statutes to other trial courts.

15. This Court has jurisdiction over Defendants, and each of them, because Defendants are authorized to do business in California and are registered with the California Secretary of State, do sufficient business in California, have minimum contacts with California, and otherwise intentionally avail themselves of the markets within California, through the promotion, sale, marketing and distribution of its products and services in California, so as to render the exercise of jurisdiction by the California courts permissible under traditional notions of fair play and substantial justice. The claims asserted in this action have sufficient connection to justify the application of California law to all claims asserted herein.

16. Venue is proper in this Court because a substantial number of the acts and omissions complained of herein occurred in this county and a substantial number of the products at issue were advertised, promoted, sold and distributed in this county. Defendants, and each of them, have received substantial compensation from sales of computer hardware and software products in this county and/or sales to persons residing in this county, and by doing business, the Defendants, and each of them, have had effects in this county.

17. Defendants, and each of them, are resellers of, among other things, computer hardware and software products.

18. Defendants, and each of them, have sold in each of the past four years, and continue to sell, computer hardware and software products in their California stores that are materially defective in that they will not function properly with regard to dates, including but not limited to, after December 31, 1999. This material defect will sometimes be referred to herein as "non-Year 2000 compliant."

19. Defendants have sold numerous computer software products in their California stores which are non-Year 2000 compliant. Plaintiff does not have a complete list of such products, and will attempt to obtain a complete list through discovery in this action. However, Plaintiff is informed and believes that Defendants, and each of them, have sold, and continue to sell in their California stores, some or all of the following software products which are non-Year 2000 compliant:

a) Quicken, versions prior to 99.

b) Norton AntiVirus, versions prior to 4.0.

c) Microsoft Works, versions 4.0, 4.0(a) and 4.5 (without the Microsoft update).

d) Peachtree Accounting, release 3.0, 3.5, and 5.0.

e) Corel WordPerfect Suite, versions prior to 8.0.

f) Windows 98 (without the Microsoft update).

20. Defendants have also sold numerous computer hardware products in their California stores which are non-Year 2000 compliant. Plaintiff does not have a complete list of such products, and will attempt to obtain a complete list through discovery in this action. However, Plaintiff is informed and believes that Defendants, and each of them, have sold in their California stores, some or all of the following hardware products which are non-Year 2000 compliant:

a) Compaq Presario 8700, 5526, and numerous other Compaq Presario models sold from 1995 through 1997, and possibly beyond.

b) NEC Versa 2000, and numerous other NEC Versa models sold from 1995 through 1997, and possibly beyond.

c) Toshiba Protégé 3600 CT, Satellite T2130CT, and numerous other Toshiba models sold from 1995 through 1997, and possibly beyond.

21. Defendants have also sold, and continue to sell, Year 2000 compliant hardware that is bundled with non-Year 2000 compliant software. Plaintiff does not have a complete list of such products, and will attempt to obtain a complete list through discovery in this action. However, Plaintiff is informed and believes that Defendants, and each of them, have sold, and continue to sell in their California stores, some or all of the following Year 2000 compliant hardware products which are bundled with non-Year 2000 compliant software:

a) Compaq Presario 2266, and similar Compaq Presario models released in 1998 and 1999.

b) Toshiba Satellite 4015 CDT, 4015 CDS, and similar Toshiba models released in 1998 and 1999.

c) IBM Thinkpad SE7, E34, and similar IBM models released in 1998 and 1999.

d) Packard Bell 850, and similar Packard Bell models released in 1998 and 1999.

e) HP Pavilion 5190, 5660, 6355, 6356, and similar HP models released in 1998 and 1999.

22. The manufacturers of each of the products referred to in paragraphs 19 through 21 of this Complaint disclose that such products are non-Year 2000 compliant or Year 2000 compliant if upgraded, on, among other places, their websites. However, Defendants, in each of the past four years, have not disclosed such to their customers and, thus, Defendants’ customers will not be necessarily apprised of this information unless Defendants take affirmative steps to disclose this information.

23. In each of the past four years, Defendants, and each of them, have failed to do the following in their California stores:

a) accurately inform their customers who purchase software and hardware products whether such products are Year 2000 compliant.

b) accurately inform their customers who have purchased non-Year 2000 compliant products in the past that such products are non-Year 2000 compliant.

c) accurately inform their customers, past and present, of the potential significant ramifications of purchasing and using software and hardware that are non-Year 2000 compliant.

d) accurately inform their customers, past and present, that non-Year 2000 compliant products sold by defendants can often be "fixed" at no cost or nominal cost.

e) accurately inform their customers, past and present, how to assess the Year 2000 capabilities of the products that they have sold.

24. Defendants, and each of them, have made in each of the past four years, and continue to make, material misrepresentations as to the capabilities of their products to perform with regard to dates, including but not limited to, after December 31, 1999. Defendants, and each of them, have made representations, including but not limited to, that all of the computers they sell, including the operating system and software that is bundled with the computers, are Year 2000 compliant, and that no fixes or upgrades are necessary to make them compliant. This contradicts information given by the manufacturers of the products they sell. By way of example, Microsoft discloses on its website that Windows 98 requires a Year 2000 update as a prerequisite to become Year 2000 compliant. However, Defendants, and each of them, inform their customers that Windows 98 is Year 2000 compliant without informing them of the need for the Year 2000 update. Failure to disclose this information is both inaccurate and likely to mislead consumers into thinking that they have purchased a Year 2000 compliant product.

25. Defendants, and each of them, have made in each of the past four years, and continue to make, material misrepresentations as to the options available to remedy non-Year 2000 compliant hardware and software. By way of example, Defendants, and each of them, have made representations, including but not limited to, that the least expensive way to make non-Year 2000 compliant versions of Quicken Year 2000 compliant is to buy from Defendants the upgrade to Quicken 99. These representations are entirely inconsistent with the information provided on the Intuit website, which states that Quicken 98 can be made Year 2000 compliant by simply downloading a free upgrade provided by Intuit.

26. Defendants have also sold in each of the past four years, and continue to sell in their California stores, numerous computer software and hardware products that have not yet been completely tested, or will not be tested, to determine whether or not they are Year 2000 compliant. Defendants have not disclosed, and continue to not disclose, this lack of information to their customers.

27. Defendants, and each of them, knew or should have known at all relevant times that numerous computer hardware and software products they have sold, and continue to sell, contain material defects which were not disclosed.

28. Defendants, and each of them, knew or should have known at all relevant times, that free and/or inexpensive Year 2000 "fixes" for products that they have sold are available from the product manufacturers.

29. As a result of the acts and omissions of Defendants, and each of them, Defendants’ customers have suffered, and will continue to suffer, harm in having computer software and hardware products that will not function properly with regard to dates, including but not limited to, after December 31, 1999. Customers have also suffered harm, and will continue to suffer harm, in that they have purchased, and will continue to purchase, computer hardware and software products at a price that does not reflect the defective nature of those products.

30. As a further result of the acts and omissions of Defendants, and each of them, Defendants’ customers will suffer great harm in that they have been, or will be, deceived into buying upgrades and fixes for their non-Year 2000 compliant products that they could otherwise obtain for free. Such harm would not have been sufferred, and will not be suffered in the future, if Defendants disclose to their customers that certain products sold in the past, and currently being sold, are non-Year 2000 compliant, and disclose the consequences of purchasing and using such products. Further, such harm would not have been sufferred, and will not be suffered in the future, if Defendants accurately advise their customers how to remedy their non-Year 2000 compliant products, other than by purchasing later versions of products, before such products malfunction.

31. Additionally, Defendants have benefitted, and will continue to benefit, substantially from their unfair, unlawful and deceptive trade practices. Specifically, Defendants have enjoyed and will continue to enjoy increased sales and profits from their acts and omissions.

32. Plaintiff realleges and incorporates by reference every allegation contained in paragraphs 1 through 31 of the complaint as though fully set forth at length herein.

33. California Business and Professions Code §17200 prohibits acts of unfair competition, which includes any "unlawful, unfair or fraudulent business act or practice."

34. The acts and omissions by Defendants, and each of them, as herein alleged, constitute an unlawful, unfair and deceptive business act or practice within the meaning of Business and Professions Code §17200. Such conduct violates state law, is unfair and has a tendency to deceive both plaintiff and the general public, and the gravity of the harm created by Defendants’ conduct in terms of having sold and continuing to sell products that are not Year 2000 compliant, and not accurately disclosing the availability of free or inexpensive "fixes" for non-Year 2000 compliant hardware and software, outweighs any justification for not providing accurate and complete information to their customers.

35. As a result of the conduct described above, Defendants, and each of them, have been, and will continue to be, unjustly enriched at the expense of Plaintiff and the California general public.

36. Pursuant to Business and Professions Code §17203, Plaintiff seeks preliminary and permanent injunctive relief requiring Defendants to, among other things, disclose to past, present and future customers that Defendants (1) have sold non-Year 2000 compliant products, (2) how to determine if their products are non-Year 2000 compliant, and (3) how they can remedy the problem prior to experiencing malfunctions. The details of such relief will be more specifically outlined after discovery has been conducted.

37. Pursuant to Business and Professions Code §§17203 and 17535, Plaintiff seeks an order by this Court that Defendants, and each of them, disgorge their ill-gotten gains and award Plaintiff, and all other members of the California general public, full restitution of all monies wrongfully acquired by Defendants by means of such acts of unlawful and unfair competition, plus interest and attorneys’ fees pursuant to, inter alia, California Code of Civil Procedure §1021.5, so as to restore any and all monies to Plaintiff and the California general public which were acquired and obtained by means of such unlawful and unfair competition, and which ill-gotten gains are still retained by Defendants. Plaintiff additionally requests that such funds be impounded by the Court or that an asset freeze or trust be imposed upon such revenues and profits to avoid dissipation or fraudulent transfers or concealment of such monies by Defendants.

38. As there is no other remedy to Plaintiff and members of the California general public, failure to order Defendants, and each of them, to provide the above requested injunctive relief will result in Plaintiff and the members of the California general public being irreparably harmed or denied an effective and complete remedy if injunctive relief is not granted.

39. Plaintiff realleges and incorporates by reference every allegation contained in paragraphs 1 through 38 of the complaint as though fully set forth at length herein.

40. California Business and Professions Code §17500 makes it unlawful for any person, with intent directly or indirectly to dispose of personal property, to make any statement concerning such personal property, which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.

41. The acts and omissions by Defendants, and each of them, as herein alleged, constitute false and misleading statements within the meaning of Business and Professions Code §17500. Such conduct violates state law, is unfair and has a tendency to deceive both plaintiff and the general public, and the gravity of the harm created by Defendants’ conduct in terms of having sold, and continuing to sell, products that are not Year 2000 compliant, and not accurately disclosing the availability of free or inexpensive "fixes" for non-Year 2000 compliant hardware and software, outweighs any justification for not accurately informing customers of the problem.

WHEREFORE, Plaintiff prays:

1. For equitable and injunctive relief as permitted by law or equity, including disgorgement, imposition of a constructive trust, impounding or attaching Defendants’ ill-gotten monies, freezing Defendants’ assets, requiring Defendants to pay restitution to Plaintiff and all members of the California general public and restoring to the public all funds acquired by means of any act or practice declared by this Court to be an unlawful, unfair or fraudulent business act or practice, a violation of laws, statutes or regulations, or constituting unfair competition.

2. Preliminary and permanent injunctions requiring Defendants to disclose to past, current and future customers the nature of the Year 2000 problem and a means to determine what products are non-Year 2000 compliant, and how such products can, if at all, be fixed.

3. Preliminary and permanent injunctions enjoining Defendants’ from selling defective computer hardware and software products without full and adequate disclosure of the Year 2000 compliance of each product.

4. Awarding Plaintiff reasonable attorneys’ fees, costs and expenses incurred in connection with this suit;

5. Such other and further relief as the Court may deem necessary and appropriate.