333 F. Supp. 3d 966
N.D. Cal.2018Background
- Plaintiff Montgomery Beyer sued Symantec alleging Norton and Enterprise antivirus products used a flawed AntiVirus Decomposer Engine that unpacked files at high kernel privilege and used outdated third‑party code, creating critical vulnerabilities.
- Claims: CLRA, Song‑Beverly (implied warranty), False Advertising Law (FAL), Unfair Competition Law (UCL) (fraudulent/unlawful/unfair prongs), and unjust enrichment; putative nationwide class for purchasers/licenses from Dec 21, 2005–Sept 19, 2016.
- The complaint relies on a June 28, 2016 Google Project Zero report describing the alleged defects (High Privilege Defect and Outdated Source Code Defect).
- Beyer purchased Norton 360 Premier v.2.0 (Second Software) in March 2009 and a later retail purchase (Third Software); he seeks relief primarily for the Second Software purchase.
- Symantec moved to dismiss under Rule 9(b), Rule 12(b)(6), and for lack of Article III standing; the court granted limited dismissals (claims relating to the Third Software and Song‑Beverly claim) but otherwise denied the motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing for class including Enterprise Products | Beyer: enterprise and consumer products contain the same defective engine so class may include both | Symantec: Enterprise Products differ (central management, different purchasers/materials) so Beyer lacks standing for unpurchased products | Court: denied 12(b)(1); products sufficiently similar at pleading stage to assert class claims; differences may be addressed later at class certification |
| Rule 9(b) pleading for fraud‑based UCL/FAL/CLRA claims (specificity/reliance) | Beyer: alleged product page review and reliance generally; representations were misleading and omissions material | Symantec: statements are puffery; Beyer fails to particularize which statements he saw/relied upon (esp. Third Software) | Court: dismissed claims tied to Third Software for lack of particularity; statements about Second Software ("industry leading") not mere puffery at pleading stage and survive; reliance and materiality adequately pled for Second Software |
| Omission duty and nature of defect (safety hazard vs. central/physical defect) | Beyer: defects are physical (software as tangible) and central to product function, so nondisclosure actionable under California law | Symantec: California law requires safety hazard or factual showing; some authorities limit omission claims | Court: defects plausibly physical and central; Collins/Rutledge line permits nondisclosure claims beyond classic safety hazards; omissions survive at pleading stage |
| Song‑Beverly implied warranty (retail sale in California) | Beyer: purchase was online from Symantec; EULA selects California law; title/retail sale occurred in California via electronic delivery | Symantec: Beyer is Michigan resident and complaint lacks facts showing sale occurred in California | Court: dismissed Song‑Beverly claim without prejudice because complaint fails to allege sale/transfer in California |
Key Cases Cited
- Fortyune v. Am. Multi‑Cinema, Inc., 364 F.3d 1075 (9th Cir. 2004) (Article III standing requirements overview)
- Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) (Rule 9(b) "who, what, when, where, and how" standard for fraud‑based claims)
- In re Tobacco II Cases, 46 Cal.4th 298 (Cal. 2009) (materiality and reliance presumptions for UCL/FAL/CLRA claims)
- Consumer Advocates v. Echostar Satellite Corp., 113 Cal. App.4th 1351 (Cal. Ct. App. 2003) (distinguishing puffery from actionable representations)
- Wilson v. Hewlett‑Packard Co., 668 F.3d 1136 (9th Cir. 2012) (omission liability and safety hazard discussion)
- Hodsdon v. Mars, Inc., 891 F.3d 857 (9th Cir. 2018) (discussing Collins/Rutledge effect on omission/safety‑hazard pleading)
- Cel‑Tech Communications, Inc. v. Los Angeles Cellular Telephone Co., 20 Cal.4th 163 (Cal. 1999) (framework for UCL "unfair" prong)
- LiMandri v. Judkins, 52 Cal. App.4th 326 (Cal. Ct. App. 1997) (factors establishing duty to disclose via omission)