Khoday v. Symantec Corp.
93 F. Supp. 3d 1067
D. Minnesota2015Background
- Plaintiffs Khoday and Townsend bought Symantec download-insurance products (EDS/NDI) sold via Digital River and later Symantec’s storefronts between 2005–2011; EDS/NDI auto-populated carts and could be declined by opting out.
- EDS/NDI extended the 60-day automatic-download window (EDS: one year, exact version; NDI: one–three years, generally latest edition); prices ranged roughly $4.99–$16.99.
- Plaintiffs allege defendants’ representations (including the “What’s this?” popup and sales practice of pre‑selecting EDS/NDI) misled consumers into thinking alternatives to paid download insurance did not exist, asserting UCL, CLRA, Minnesota Consumer Fraud Act, and unjust-enrichment claims on behalf of a class.
- Defendants offered several expert witnesses on eCommerce and attacked plaintiffs’ experts (conjoint survey, web‑archive analysis, and damages); plaintiffs moved to modify class periods for Digital River and unjust-enrichment claims.
- The court denied Symantec’s summary-judgment motion, admitted most expert testimony with limitations (excluding portions outside experts’ qualifications), and granted the limited class‑period modifications (extend Digital River period to June 30, 2010; shorten Symantec unjust‑enrichment period by one year).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Defendants’ eCommerce experts (Kalyanam, Stephens) | Experts may testify on eCommerce practices and marketing value of add-ons | Experts lack product‑specific experience and cannot opine about download process or critique plaintiffs’ conjoint analysis | Court admitted experts for general eCommerce/marketing opinions; excluded testimony about specific download steps/processes and critique of conjoint analysis beyond their qualifications |
| Admissibility of Plaintiffs’ experts (Gaskin, Taylor, Herscovici) | Conjoint survey can value attribute; Wayback‑Machine archiving and damages aggregation are specialized and admissible | Conjoint cannot assign monetary value to attribute; web‑archive testimony is just repeating public webpages; damages are simple math | Court admitted Gaskin (conjoint), Taylor (web‑archive expertise), and Herscovici (damages calculations) with ability for cross‑examination on methodology |
| Material misrepresentation under California UCL (NDI descriptions/auto‑add) | NDI representations and auto‑add could mislead consumers into believing no free alternatives existed after 60 days | NDI described a guarantee; alternatives were not guaranteed so no misleading omission; plaintiff’s reading is strained | Genuine issue of material fact exists whether overall presentation misled consumers; summary judgment denied on this ground |
| Actual harm / reliance / damages | Plaintiffs would not have purchased NDI if they knew free alternatives were available; thus they suffered economic harm | Plaintiffs received what they paid for (a guarantee/peace of mind); no measurable loss | Court found disputed facts on whether plaintiffs relied to their detriment; summary judgment denied and damages issues left for trial |
Key Cases Cited
- Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993) (district court gatekeeping duties for expert reliability)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (Daubert reliability inquiry is flexible and applies to all expert testimony)
- Bonner v. ISP Techs., Inc., 259 F.3d 924 (8th Cir. 2001) (factual basis of expert opinion goes to credibility, not admissibility)
- Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) (summary‑judgment standard: genuine dispute and material fact)
- Celotex Corp. v. Catrett, 477 U.S. 317 (1986) (party opposing summary judgment must produce evidence on essential elements)
- In re Tobacco II Cases, 46 Cal.4th 298 (2009) (California consumer‑protection causation standard and materiality inquiry)