Khoday v. Symantec Corp., 2012 U.S. Dist. LEXIS 32752

Khoday and Townsend sue Symantec and Digital River on behalf of a class alleging sale of an unnecessary product via false/misleading information; Download Product labeled Norton Download Insurance/Extended Download Service allegedly misrepresentedIts benefits and scope.
Download Product automatically appears in shopping cart; consumers could click “What’s this?” for details; material text described 60-day download window and one-year backup/re-download access.
Customers paid $5.99–$10.99 for the Download Product; after complaint, Symantec ceased promoting/selling it.
Plaintiffs assert CLRA, UCL, and unjust enrichment claims under California law against Symantec; CFA, FSAA, and unjust enrichment claims under Minnesota law against Digital River; seek declaratory relief on unlawfulness of the Download Product.
Named plaintiffs Khoday (California) and Townsend (Florida) purchased the Download Product and allege they would not have bought it if they knew it was optional and provided no unique benefit.
Court grants Symantec and Digital River’s motions to dismiss the declaratory judgment claims, but denies dismissal of other claims as sufficiently pleaded to show misrepresentation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the Download Product a CLRA service?	Khoday argues it may be a service under CLRA.	Symantec contends it is not a service.	Court finds it may qualify as a service; further development needed.
Is the Download Product ancillary to Norton under CLRA?	Product is not ancillary; distinct and separately purchased.	Product is ancillary to Norton.	Court finds it could be non-ancillary; unresolved pending record specifics.
Does the UCL plead fraudulent, unfair, and unlawful conduct?	Plaintiffs allege affirmative misrepresentations and duty to disclose.	Defendants argue statements were true or non-deceptive.	Plaintiffs plausibly alleged fraudulent, unfair, and unlawful conduct; UCL survives.
Do CFA/FSAA claims require public benefit and misrepresentation, and are they viable here?	Misrepresentations affect the public; Private AG statute supports recovery.	Public benefit and misrepresentation elements may be lacking.	Court finds public benefit and misrepresentation adequately alleged; CFA/FSAA survive.
Should declaratory judgment claims be dismissed?	Declaratory relief is appropriate to preempt ongoing harm.	Alternative remedies render declaratory relief unnecessary.	Declaratory judgment claims dismissed as unnecessary given other remedies.

Morgan v. AT&T Wireless Servs., Inc., 177 Cal.App.4th 1235 (Cal.App. 2009) (UCL fraud standards and related duties discussed)
Buller v. Sutter Health, 160 Cal.App.4th 981 (Cal.Ct.App. 2008) (discounts vs. non-disclosure of other options cited)
Lozano v. AT&T Wireless Servs., Inc., 504 F.3d 718 (9th Cir. 2007) (UCL prongs and consumer protections explained)
Kearns v. Ford Motor Co., 567 F.3d 1120 (9th Cir. 2009) (Rule 9(b) heightened pleading for fraud)
Kinetic Co. v. Medtronic, Inc., 672 F.Supp.2d 933 (D.Minn.2009) ( Minn. consumer claims pleadings under 9(b) scrutiny)
In re Levaquin Prods. Liab. Litig., 752 F.Supp.2d 1071 (D.Minn.2010) (public-benefit considerations in private AG actions)
In re Nat’l Arbitration Forum Trade Practices Litig., 704 F.Supp.2d 832 (D.Minn.2010) (monetary damages can yield public benefit)
Collins v. Minn. Sch. of Bus., Inc., 655 N.W.2d 320 (Minn.2003) (public-benefit analysis for misrepresentation claims)
Ly v. Nystrom, 615 N.W.2d 302 (Minn.2000) (statutory Private AG framework and public interest)
Fairbanks v. Superior Court, 46 Cal.4th 56 (Cal.2009) (legal scope of CLRA services vs ancillary)
McKell v. Wash. Mut., Inc., 142 Cal.App.4th 1457 (Cal.Ct.App.2006) (UCL/CLRA context in software sales)
Taylor Inv. Corp. v. Weil, 169 F.Supp.2d 1046 (D.Minn.2001) (omission/misrepresentation in CFA/FSAA analysis)