J.P. on behalf of her minor son R.P., et al v. Educational Testing Services , et al

Filing 1

COMPLAINT Receipt No: ACACDC-26495301 - Fee: $400, filed by Plaintiffs A.K., individually and on behalf of all others similarly situated, The National Center for Fair & Open Testing, doing business as FairTest, a Massachusetts corporation, M.S. on behalf of her minor daugther Z.S., and all others similarly situated, J.P. on behalf of her minor son R.P., and all others similarly situated, R.G. on behalf of her minor son J.G., and all others similarly situated. (Attorney Phillip A Baker added to party A.K., individually and on behalf of all others similarly situated(pty:pla), Attorney Phillip A Baker added to party J.P. on behalf of her minor son R.P., and all others similarly situated(pty:pla), Attorney Phillip A Baker added to party M.S. on behalf of her minor daugther Z.S., and all others similarly situated(pty:pla), Attorney Phillip A Baker added to party R.G. on behalf of her minor son J.G., and all others similarly situated(pty:pla), Attorney Phillip A Baker added to party The National Center for Fair & Open Testing, doing business as FairTest, a Massachusetts corporation(pty:pla))(Baker, Phillip)

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PHILLIP A. BAKER, BAR ID #169571
[e-mail]
JENNIFER L. STONE, BAR ID #325493
[e-mail]
BAKER, KEENER & NAHRA, LLP
633 West 5th Street, Suite 5500
Los Angeles, California 90071
Telephone: [phone]/Facsimile: [phone]
MARCI LERNER MILLER, BAR ID # 162790
[e-mail]
CHRISTINA N. HOFFMAN, BAR ID #161932
[e-mail]
MILLER ADVOCACY GROUP
1303 Avocado Avenue, Suite 230
Newport Beach, California 92660
Telephone: [phone]/Facsimile: [phone]
Attorneys for Plaintiffs

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION

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Plaintiff J.P. on behalf of her minor son
R.P., and all others similarly situated;
THE NATIONAL CENTER FOR FAIR
& OPEN TESTING doing business as
FAIRTEST, a Massachusetts
corporation; A.K., individually and on
behalf of all others similarly situated;
R.G. on behalf of her minor son J.G., and
all others similarly situated; Plaintiff
M.S. on behalf of her minor daughter
Z.S., and all others similarly situated,

Case No.:
NATIONWIDE AND
CALIFORNIA CLASS ACTION
COMPLAINT
DEMAND FOR JURY TRIAL

Plaintiffs,

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vs.

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EDUCATIONAL TESTING SERVICES
(ETS), a New York corporation;
THE COLLEGE ENTRANCE
EXAMINATION BOARD, a New York
corporation, doing business as THE
COLLEGE BOARD; and
DOES 1 through 50, inclusive,

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Defendants.

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///
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Plaintiffs, Plaintiff J.P. on behalf of her minor son R.P. and all others similarly

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situated; THE NATIONAL CENTER FOR FAIR & OPEN TESTING (“FairTest”);

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A.K., individually and on behalf of all others similarly situated; R.G. on behalf of her

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minor son J.G., and all others similarly situated; Plaintiff M.S. on behalf of her minor

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daughter Z.S., and all others similarly situated (collectively, “Plaintiffs”), allege and

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plead as follows:
INTRODUCTION

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1.

Plaintiffs bring this suit against Defendants to recover the damages owed to

them and others similarly situated and for injunctive relief as a result of the Defendants’

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failure to allow access to and failure to administer its Advanced Placement (“AP”)

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program properly and without prejudice.

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2.

The College Board is involved at every level of the college preparation,

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testing, admissions, financial aid, and placement process. It is the leading player in the

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higher education industry responsible for the fates of millions of high school students

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every year, deciding who will be recruited, who will apply, who will be accepted, who

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will receive financial aid, and who will be able to afford college and other

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postsecondary opportunities. The Educational Testing Service (“ETS”) is responsible

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for the development, administration, and scoring of College Board’s assessments,

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including AP exams.

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3.

AP is a program offered by the College Board that offers college-level

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courses and examinations to high school students. Colleges and universities frequently

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grant placement and course credit to students who obtain passing scores on their AP

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examinations. The length of time each student will spend in college, their curriculum,

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and how much they pay to attend college are factors heavily influenced by College

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Board and the AP opportunities available to students. The College Board claims that

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AP courses and examinations also favorably impact college admissions decisions by

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demonstrating to admissions officers that a student is prepared for college-level work.

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AP courses strengthens a student’s high school transcript and help students qualify for

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scholarships.

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4.

In March of 2020, schools around the world moved to distance learning

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due to the COVID-19 pandemic. The College Board was faced with the decision of

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cancelling its popular and profitable AP program for the year, postponing the exams, or

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offering them at home to students. The College Board made the decision to offer the

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AP exams to students at home but with significant structural changes.

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5.

The College Board was immediately made aware by numerous sources,

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including counselors, educators, advocates and families, that there were serious

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concerns that the at-home AP exams would not be fair to students who have no

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computer, access to Internet or quiet workspaces from which to work, or to under-

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resourced students in general. Even as the test began, questions remained about the

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availability and applicability of legally required accommodations for students with

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disabilities, the fair access to connectivity for all students, test security, and score

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comparability.

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6.

Counselors, educators, advocates, and families immediately reached out to

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The College Board to make them aware of their serious concerns with the at-home AP

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format’s likely impact on students who have no computer, access to Internet or quiet

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workspaces from which to work, or on under-resourced students in general. Even as the

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test began, questions remained about the availability and applicability of legally

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required accommodations for students with disabilities, connectivity, test security, and

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score comparability.

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7.

The College Board acknowledged that these issues existed, but it did not

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change its policies to address them. On May 14, 2020, after 3 full days of at-home AP

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exams, the College Board admitted that there was a measurable failure rate in uploading

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exams, and it attempted to change its policies going forward. The College Board’s

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President, David Coleman acknowledged in an email that, “we can't control the

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conditions in students' homes.” Technical problems with the digital versions of the AP
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exams caused and continue to cause tremendous angst for high school students and their

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parents during this already stressful time.

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8.

Before this year, high school students took their AP exams at school during

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the regular school day hours in a controlled and regulated environment where they could

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ask for assistance if necessary. The College Board acknowledged that it knew moving

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the exams home may exclude some students from testing at all, stating that, “We

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recognize that the digital divide could prevent some low-income and rural students from

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participating.” The College Board moved the AP exams to students’ homes under the

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present conditions despite this acknowledgement. In doing so, the College Board

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knowingly discriminated against under-resourced students, disabled students, and

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students in remote locations, and it failed to honor its commitments to students and their

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families.

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After one day of testing, it became clear that the College Board and ETS

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had failed to fairly, competently, or equitably administer the AP exams. The students

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who relied on AP scores for the financial benefits of college placement and credit

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experienced technical glitches, timing issues, and a heightened level of anxiety and

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distress. Reports of anywhere between 5% and 20% of examinees were unable to

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submit their responses through the at-home testing platform during the first three days

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of AP exams. One AP Coordinator reported a failure rate of 30%. Some students could

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only submit partial responses, and others could not even log on to take the exams.

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10.

Despite the fact that these are challenging times for families, The College

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Board offered no acceptable remedies to students whose lack of digital access prevented

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them from fairly testing. Nor did it offer remedies to students who experienced glitches

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with the AP platform. On May 15, 2020, The Chronicle of Higher Education reported,

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“AP Tests During Covid-19: Heartbreak, Technical Glitches, and Anonymous

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Intrigue.”1 On the same day, The Washington Post reported, “College Board Says New

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AP Test Online Going Well – But Students Report Big Problems.”2
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The College Board intends to move all of its assessments to an at-home

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format, including the SAT; however, this year’s AP exam administration makes it

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perfectly clear that until the technical issues, the digital divide and other inequities are

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adequately addressed, it cannot not do so.
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The challenge of the at-home AP exam format is only the final hurdle for

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many AP students, and it is also one step that many students may never even reach.

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Some AP students are fully denied access to AP exams and others must overcome

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additional hurdles to obtain access to AP exams based solely on where they are enrolled

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in school. Access is particularly challenging for students enrolled in California public

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charter schools or homeschools.
THE PARTIES

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Plaintiffs:

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13.

Plaintiff J.P. is acting on behalf of her minor son R.P. and all others

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similarly situated. R.P. is a high school student who is registered to take at-home AP

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exams. Pseudonyms have been used throughout the complaint in order to protect the

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identity of the minor Plaintiffs. Further the public has little legitimate interest in

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knowing the true identity of the Plaintiffs. The Defendants will not be prejudiced by

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allowing the Plaintiffs to proceed anonymously and in this manner until a protective

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order is in place.

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The National Center for Fair & Open Testing (“FairTest”) is a nationwide

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public charity that operates in California. FairTest’s mission is to advance quality

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education and equal opportunity by promoting fair, open, valid evaluations of students,

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teachers, and schools. FairTest works on behalf of examinees to end the misuses of

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https://www.chronicle.com/article/AP-Tests-During-Covid-19-/248792
https://www.washingtonpost.com/education/2020/05/15/college-board-says-new-online-ap-tests-are-going-well-studentsreport-big-problems/
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standardized tests, placing special emphasis on eliminating the racial, class, gender, and

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cultural barriers to equal opportunity. In pursuit of its mission, FairTest provides

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information and technical assistance to students and parents as well as advocacy on a

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broad range of testing concerns, including those relating to the at-home AP exams.

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15.

Plaintiff A.K. is acting individually and on behalf of all others similarly

situated. A.K. is a high school student who registered for and took AP exams.
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Plaintiff R.G. is acting on behalf of her minor son J.G and all others

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similarly situated. J.G. is a high school student who is registered to take at-home AP

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exams.

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Plaintiff M.S. is acting on behalf of her minor daughter Z.S. and all others

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similarly situated. Z.S. is a high school student who is registered to take one at-home

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AP exam.

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Defendants:

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18.

Defendant EDUCATIONAL TESTING SERVICE (“ETS”) is registered as

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a non-profit organization headquartered in Princeton, New Jersey. ETS has multiple

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offices in the State of California, including within this jurisdiction. Plaintiffs are

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informed and believe that ETS administers AP exams on behalf of Defendant College

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Board.

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Defendant COLLEGE ENTRANCE EXAMINATION BOARD (“The

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College Board”) is a New York corporation with its principal place of business in New

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York, New York, which does business in California. Plaintiffs are informed and believe

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that the AP program is fully owned and operated by The College Board.

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Defendants ETS and College Board are referred to collectively herein as

“Defendants.”
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The true names and capacities of defendant DOES 1 through 50, inclusive,

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whether individual, corporate, associate or otherwise, are unknown to Plaintiff, who

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therefore sues said defendants by such fictitious names and will amend to allege their

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true names and capacities when ascertained. Plaintiffs are informed and believe that
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each of the DOE defendants is responsible for the acts or omissions alleged in this

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complaint, and that Plaintiffs’ injuries and damages were proximately caused by the acts

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or omissions of these unnamed defendants.

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22.

Plaintiffs are informed and believe, and based thereon allege, that each of

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the Defendants herein was at all relevant times the principal, agent, alter-ego, joint-

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venturer, partner, affiliate, manager, subsidiary, servant, employee and/or co-conspirator

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of each other Defendant, and in performing the acts described in this complaint, was

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acting in the scope of his, her or its authority with the consent of each other Defendant.

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Each Defendant ratified and/or authorized the wrongful acts, conduct, omissions, or

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commissions of each of the other Defendants. At all relevant times, each Defendant

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acted with full knowledge of the conduct of each of the other Defendants, with the

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intention to cooperate therewith.

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23.

Plaintiffs do not know the true names and capacities, whether corporate,

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partnership, associate, individual, or otherwise of Defendant issued herein as DOES 1

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through 10, inclusive, under the provisions of Central District of California, Local Rule

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19-1. Defendant DOES 1 through 50, inclusive, are in some manner responsible for the

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acts, occurrences and transactions set forth herein, and are legally liable to Plaintiff.

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Plaintiff will seek leave to amend this Complaint to set forth the true names and

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capacities of the fictitiously named Defendants, together with appropriate charging

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allegations, when ascertained.

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officer, director or managing agent of the corporate employer.
JURISDICTION AND VENUE

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All acts of corporate employees as alleged were authorized or ratified by an

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This Court has subject matter jurisdiction over this action pursuant to the

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Class Action Fairness Act of 2005, 28 U.S.C. § 1332(d), as the proposed class contains

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more than 100 members, at least one of whom maintains citizenship in a state diverse

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from the defendant, and seeks in the aggregate more than $5,000,000, exclusive of costs

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and interest.
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Venue is proper pursuant to 28 U.S.C. § 1391(b) & (c) because a

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substantial part of the events or omissions giving rise to the claim occurred in this

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judicial district, and because Defendants are subject to the Court’s personal jurisdiction

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in this judicial district.
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This Court has personal jurisdiction over the parties hereto, because the

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Defendants are corporations that do business throughout the State of California. The

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facts underlying this case arise from the State of California and from within this judicial

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district. Defendants’ conduct substantially impacts the State of California and its

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students. Plaintiffs are informed and believe that each Defendant herein has sufficient

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contacts with California so as to make proper the exercise of personal jurisdiction over

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them, and have sufficient minimum contacts so as to render the exercise of personal

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jurisdiction permissible under traditional notions of fair play and substantial justice.
COMMON FACTUAL ALLEGATIONS

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28.

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The College Board claims that students who score a 3 or higher (out of 5)

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on an AP Exam typically experience greater academic success in college and are more

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likely to earn a college degree on time than non-AP students.3 As the only player in the

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education market with this level of influence over high school curriculum, college

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admissions, course placement, and financial outcomes, the College Board knows that

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access to its AP exams must be fair, reliable, and affordable.
29.

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To ensure that low-income students can access AP Exams at a reduced

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cost, Every Student Succeeds Act (ESSA) provides funding for AP Exams and courses

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under the Title IV, Part A block grant.4 Additional funding is also available for states

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and districts to cover AP Exam fees for low-income students. In California, an

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increasing number of lower income students are enrolling in AP courses. Of the 58.7

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https://collegereadiness.collegeboard.org/about/benefits/connect-to-ap

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4

https://professionals.collegeboard.org/testing/states-local-governments/new-education-policies/essa-federal-funding-ap

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percent of the state's K–12 students eligible for the free or reduced-price lunch program

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in the Class of 2017, 45.5 percent took at least one AP exam.5
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Each year, millions of high school students take 38 different AP exams at

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the end of the school year. In 2019, 3.1 million students took a total of 4.9 million AP

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exams at school. In 2020, 3.4 million students are registered to take over 5 million AP

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exams. During the first week of testing, students took or attempted to take over 2.2

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million AP exams. The cost of an AP exam is generally between $100 and $150 per test.
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In 2018, the College Board earned over $480 million dollars from its AP

program alone. The College Board collected its exam fees in the Fall of 2019 for the
Spring 2020 exams.
32.

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AP exams provide a means for high school students to earn college credit

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while in high school. Defendant College Board advertises that, “by taking an AP course

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and scoring successfully on the related AP Exam, [a high school student] can save on

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college expenses: most colleges and universities nationwide offer college credit,

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advanced placement, or both, for qualifying AP Exam scores... These credits can allow

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students to save college tuition, study abroad, or secure a second major.” College Board

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further advertises that, “[e]arning a qualifying score on the AP Exam can help you

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advance and avoid required introductory courses – so you can move directly into upper-

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level classes and focus on the work that interests you most.”
33.

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The AP program is the only widely available high program allowing

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students to earn college credits. Defendant College Board organizes and administers the

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AP tests. The AP program is the only means for high school students to test for college

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credit in dozens of subject matters. In order to obtain college credits, students are

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required to pass the AP test, as scored and reported by Defendants.
34.

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Passing scores (a 3, 4, or 5) on the AP exams can save students and their

parents thousands of dollars in college tuition and costs. A successful student who takes

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https://www.cde.ca.gov/nr/ne/yr18/yr18rel16.asp

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multiple AP exams can potentially finish college a year or more earlier than students

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who did not earn AP credit during high school. Some students understandably wanted

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an option to take their AP exams for college credit when COVID-19 forced their

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schools to convert to distance learning and they could no longer test at school.

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35.

However, the format of the at-home AP exams is different from the format

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students are accustomed to and different from the practice AP exams they have taken.

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The 2020 home-based AP exams are digitally-based instead of on paper as they have

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always been in the past. The new exams are scheduled to last only 45 minutes (actually

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40 minutes with the required 5 minutes to begin uploading answers before the test ends)

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instead of 3 hours, and all tests in the same subject are given at exactly the same time.

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This means that some students in one part of the world could be taking an exam in the

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middle of the night, while others are taking it in the middle of the day. Students in

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Hawaii begin their first exams each day at 6 a.m., while students in New York begin the

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same exams at noon. The 2020 exams include material covered until the time of the

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COVID-19 breakout instead of the entire course curriculum. Most importantly, the

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exams are taken at home, where the testing environment can be unpredictable and

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distracting.

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36.

Some of the issues with the at-home format should have been anticipated.

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As soon as the College Board announced its plans to administer at-home exams,

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educators, students, parents, and AP coordinators voiced their concerns over equity and

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access issues. They also expressed concerns about timing and technical problems with

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the new format as well as score validity.

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37.

The College Board announced prior to the administration of the at-home

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exams that certain disability accommodations that were previously provided would be

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modified, eliminated, or were deemed “unnecessary” due to the new format.

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38.

Dozens of educators and counselors wrote an “Open Letter” to the College

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Board on April 22, 2020 outlining why the exams would not be fair to students who

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have no computer, access to Internet or quiet work spaces from which to work, or to
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students with disabilities who would not have their approved accommodations.6 Plaintiff

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FairTest announced that its concerns about the 2020 AP exams included computer

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equipment and technology, connectivity, the availability of legally required

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accommodations, security, and score comparability.
39.

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The College Board did not address these issues or change its policies prior

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to the administration of the at-home AP exams. In fact, on May 14, 2020, after 3 full

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days of AP exam administration, College Board’s President David Coleman

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acknowledged in an email that, “we can't control the conditions in students' homes.” He

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added, “Students may face technology or internet issues, need to tend to unexpected

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family obligations, or face other disruptions that will impact their testing experience.

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Like the virus itself, these disruptions will disproportionately impact low-income and

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underrepresented students.” Instead of changing the testing format to address the

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disparities among student testing environments, however, Mr. Coleman recommended

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that students explain their disadvantages to college admissions officers. In an admission

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that the tests are not valid for all students, Coleman said, “We're working to ensure that

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students who take the exam in challenging situations can share context with admissions

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officers about their exam experience.”
40.

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The first week of the 2020 AP exams revealed the deep digital divide

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among AP test-takers, and it became clear how the revised exam format

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disproportionately impacted certain groups of students, including those who are under-

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resourced, who lack access to technology or quiet workspaces, students with disabilities,

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and students testing in non-ideal time zones. A number of students suffered from

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technical glitches, timing issues, issues with their computer software, disability

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accommodation issues, and widespread panic due to the inability to reach anyone at the

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College Board for assistance.

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https://www.washingtonpost.com/education/2020/04/22/an-open-letter-college-board-about-online-at-home-ap-tests/

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41.

After the first week of testing, The College Board reported a failure rate of

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only 1%, but AP coordinators and students told a different story. Schools estimated that

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anywhere between 5-20% of their AP test-takers were unable to submit their exam

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responses through College Board’s testing platform during the first week. Other

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students could not finish their exams or log into the platform at all despite practicing

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beforehand.

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42.

One AP Calculus teacher reported that 3 out of her 13 students, or 23% of

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her students, faced technical obstacles submitting their work during the AP Calculus AB

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examination. This Santa Barbara-area teacher reported that one of her students received

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an upload error message after the testing time had expired. A second student had issues

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with her devices, even though she had practiced logging on and taking mock exams with

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her teacher. A third student in the class reported that her screen froze, then went blank,

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and then logged the student out upon trying to submit her answers. This student was

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never able to get back into the exam to upload her submissions.

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43.

Another AP Coordinator reported that, “This whole thing was a mess. It

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was unprofessional and added more stress to the students, teachers, families, and

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coordinators.” Another AP coordinator reported a 10% failure rate on the AP Calculus

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exam. These reports from the ground to do not square up with the College Board’s

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statement that “the vast majority” of the 2.2 million students who tested last week

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successfully completed those exams, or its written statement that less than 1% technical

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of test takers encountered technical difficulties.

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44.

Students who experienced issues with the College Board’s platform

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emailed their time-stamped work to the College Board, but it was not accepted. They

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were told that their only remedy was to retake the exam over the summer, if they

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qualified for a retake exam. Students’ anxiety continued to grow as the week progressed

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due to legitimate fears that they would complete their work but not be unable to submit

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it and would then have no remedy.7
45.

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Students have not been able to confirm access to the retake exams despite

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technical failures. Students have also reported that they have two AP exams scheduled

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for the same retake day and that they were told by The College Board that they would

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have to choose only one exam to take.
46.

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FairTest received an influx of reports about at-home AP exam failures and

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the lack of remedies. One parent reported, “We also had technical issues trying to sign

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up for a make-up exam. I spent over an hour on phone with CB. They refused to allow

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me to speak to supervisor and offered no reassurance that the problem would be fixed

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by a makeup.”
47.

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One student reported that, “Due to a technical malfunction on the College

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Board's website during the APUSH exam (AP U.S. History), I was unable to submit by

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work. My dad has been critically ill and hospitalized for the past few weeks and despite

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this challenge, I persisted in preparing for my AP exams because I wanted to achieve

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my goals of earning college credits. Now, due to a technical issue on the College

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Board's website, I am going to have to continue working during this incredibly stressful

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time in my life to prepare to re-take the exam in June.”
48.

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One parent said, “My son has time stamped images of his Physics AP

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answers. Why can’t college board find a way to accept those? We worry there is no

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make up for the make-up test. What happens if this glitch happens on the make up?”

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Another parent reported, “We also had technical issues trying to sign up for make-up

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exam. I spent over an hour on phone with CB. They refused to allow me to speak to

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supervisor and offered no reassurance that problem would be fixed by makeup.”

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https://www.washingtonpost.com/education/2020/05/15/college-board-says-new-online-ap-tests-are-going-well-studentsreport-big-problems/
https://www.insidehighered.com/admissions/article/2020/05/18/students-complain-they-cannot-submit-ap-tests
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49.

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One student described the experience of carefully preparing for the exam

2

but still being unable to submit his responses. “I took all precautions once I heard from

3

some students that there were submission errors. I updated my computer, used chrome

4

because it was recommended by the college board, sent my brother to my dad’s house

5

so I wasn’t distracted during my test, and made my family get off the wifi so I could

6

have the maximum potential my wifi could give me. . . Then, when I took Physics 1, my

7

first answer submitted with no problem, but my second question wouldn’t submit.”
50.

8
9

In response to the complaints, the College Board officials initially claimed

that their systems did not malfunction, but the problems were instead caused by

10

students. Students were instructed to update their browsers, disable plug-ins, and make

11

sure their devices were properly set up.
51.

12

Ultimately, in response to what some called a “tsunami” of complaints, the

13

College Board made some adjustments to its policies, announcing on May 17, 2020 that

14

it would provide a backup email submission option of browser-based exams for students

15

testing between May 18 and May 22, 2020. Nonetheless, if the student is unable to

16

upload responses through the exam platform or successfully transmit by email at the

17

time of the exam, as in the case of a home connectivity problem, the student would still

18

have to request a makeup exam. In addition, the College Board will not accept email

19

transmissions from students who already tested between May 11 and May 15, 2020.
52.

20

Students taking exams between May 18 and May 22, 2020 have an added

21

safeguard, providing a slightly more desirable and less stressful testing environment for

22

these test-takers. Students who experienced technical failures during the first week have

23

still not received any confirmation that they will be eligible to take a makeup exam or

24

that they will receive the added safeguard of email submission, even for their retakes.
53.

25

An online petition is circulating, called “Let Students Submit AP Work,”

26

which requests remedies for the students who tested between May 11 and May 15, 2020

27

and could not submit their work.8 The Petition states that, “We, along with all our

28

8

https://www.change.org/p/college-board-let-students-re-submit-ap-work?signed=true

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sisters and brothers in humanity, have already been having a hard time because of

2

COVID and we were already tired and stressed out and a lot of us have been struggling

3

with sadness and mental health issues. This will make all of that worse. Fortunately,

4

there's a solution. Most of us still have our work and answers saved. The college board

5

can give us time to re-submit after they fix their website.” As of the time of filing, the

6

petition had over 20,000 signatures.

7

54.

Students who do not wish to retake their exams, and even those who do not

8

wish to test at all, cannot receive a refund of their test fees directly from the College

9

Board. Even though the College Board collected money for the AP exams at least six

10

months ago, it will not directly issue refunds to students. The College Board has stated

11

that after both the regular and makeup testing windows have passed, if students have not

12

taken or attempted to take any exams, their schools will be refunded the cost of their

13

exam fees. It is then up to the students to request fee refunds from their schools. The

14

College Board’s website does not provide any instructions to students about how

15

students can receive fee refunds. Its website says, “[L]ocal school policy determines the

16

amount of the refund.”

17

55.

These are challenging times for high school students and their families,

18

emotionally and financially. Students are entitled to the valid and reliable exam they

19

signed up and paid for, absent the severe stress and anxiety associated with the new

20

format. Despite collecting what Plaintiffs believe to be approximately half a billion

21

dollars in exam fees, The College Board has failed to provide students with an AP exam

22

that is similar to the one they purchased.

23

56.

One counselor reported that, “For students this was a traumatic experience,

24

especially after all the time they put into salvaging this course/the year/etc. CB should

25

have troubleshooted the "what-ifs" ahead of time and had the policy in place for

26

students to submit answers that did not immediately go. Technology issues are not a

27

new phenomenon! What more can these poor kids be penalized for? CB needs to accept

28

the answers that would not submit last week.”
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57.

1

The “digital divide” was not properly managed. Students are entitled to an

2

exam that does not discriminate based on their lack of access to resources or based on

3

their disabilities. The College Board represented that it would provide the necessary

4

technology to all students; however, there is more than one type of device required to

5

take the AP exams this year and different exams require different equipment. For

6

example, all language tests must be taken on a phone or tablet (only specific models),

7

while others are taken on a computer. Although the College Board claimed that it would

8

get a device to everyone who needed one, the method of requesting a device required

9

digital access and was therefore not accessible to the students who needed it.
58.

10

As of the first day of AP testing, the College Board said that it had

11

“connected” with 27,000 students, less than 1% of this year’s AP exam-takers. The

12

distribution of devices to under-resourced students does not fix slow or unavailable

13

internet service, multiple family members using the internet at the same time, or other

14

issues contributing to poor testing environments.
59.

15

Some students have reported that they have nowhere to take their exams at

16

home where they can be free of distraction. It is unrealistic to think that all students

17

have quiet, private spaces at home in which to test. Lower income students are much

18

more likely to face cramped housing, siblings and parents sharing the same workspace,

19

internet connectivity problems, noisy environments, and less comfortable testing spaces.

20

It has been reported that one New Jersey teacher, worried about her star AP English

21

student’s lack of reliable internet at home, inquired with the College Board but was told

22

“have her use the free WiFi at McDonald’s.”9
60.

23

Prior to the at-home AP exams, counselors, educators and advocates

24

requested that The College Board provide additional testing time to all students. An

25

Open Letter to the College Board said that students should be provided with a flexible

26

time period, not a fixed time, in which to test. As support for this request, the Letter

27
28

9

https://www.nydailynews.com/opinion/ny-oped-taking-an-ap-test-outside-mcds-20200518-pbzbctec4rgnvkhlwrzfsd3poestory.html
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stated, “The proposed time limitations have not been tested under these extreme

2

conditions. With the extra stress associated with this year’s tests, many students fear

3

they will not be able to complete the tests in the allotted time frames. We expect this to

4

cause widespread anxiety and panic from minute one. If students know they have

5

enough time, they may still be stressed, but they will be able to relax a little and may

6

even complete the tests with a small amount of extra time, time that may be necessary to

7

accommodate differences in access.”10
61.

8
9

Students have already reported issues with the time limits imposed by this

year’s AP exams. The exams have not been properly piloted for time limits, and they are

10

more speeded and abridged than the original versions. The College Board has

11

acknowledged the timing issues. The 2020 AP Testing Guide states, “Don't worry if you

12

don't complete all parts of the question before you need to attach and submit your

13

response. To give students as many different chances to demonstrate what they know as

14

possible, a question may have more parts than can be answered in the allowed time. You

15

don't need to complete the entire question to get a score of 5, but you do need to submit

16

whatever work you've done.” While this could alleviate some students’ despair about

17

not finishing their exams, it confirms the fears of other students that their scores will be

18

seen as invalid or meritless.11
62.

19

Adding to the perception that the scores on this year’s exam may not be fair

20

or consistent is the ability of high schools to review students’ scores and request score

21

increases. The 2020 AP Testing Guide says that “AP teachers will have the chance to

22

review your score and your exam responses this summer. If you don't receive a score of

23

3 or higher and your teacher is convinced you should have, your teacher will be able to

24

engage with the AP Program's college faculty partners to review and confirm your

25

score, ensuring it's fair and appropriate.” This policy benefits students at schools with

26
27
28

10

https://www.washingtonpost.com/education/2020/04/22/an-open-letter-college-board-about-online-at-home-ap-tests/

11

https://apcentral.collegeboard.org/pdf/ap-testing-guide-2020.pdf

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more resources, and it discriminates against students who are underprivileged or who

2

attend under-resourced schools.12
63.

3

Moreover, there is no guarantee that the AP exam scores will count for

4

anything in the collegiate landscape. While some colleges have said they will accept the

5

credit, others have remained silent. Some colleges view at-home testing as inherently

6

inequitable.
64.

7

Defendants’ unlawful conduct has caused and will continue to cause

8

substantial and irreparable damage and injury to Plaintiffs in ways that cannot be

9

compensated with money, and Plaintiffs have no speedy, plain, or adequate remedy at

10

law. Students pay for these AP exams but will have disadvantages due to the College

11

Board's restrictions and practices discussed herein.
65.

12
13

If Defendants’ actions are not remedied immediately, Plaintiffs will also

suffer injuries, such as the cost of preparing for yet another set of AP exams.

14

Students with Disabilities

15

66.

When the College Board announced the new at-home testing format, it

16

initially stayed silent on accessibility and accommodations for disabled students. After

17

parents, teachers and counselors repeatedly asked for more details about

18

accommodations, the College Board announced a month before the AP exams were

19

scheduled to begin that all accommodations would be provided on the at-home exams. S

20

Still, no details about how the exams would be delivered to students with disabilities

21

were released at that time.
67.

22

On April 27, approximately two weeks before the exams were scheduled to

23

begin, the College Board finally released information regarding disability

24

accommodations. 13 Students were told that extended time would be provided through

25

the online exam. They were also told that they needed to use their own assistive

26
27
28

12
13

Id.
https://apcentral.collegeboard.org/pdf/ap-testing-guide-2020.pdf?SFMC_cid=EM305179-&rid=80697368

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technology, such as screen reader software, that was compatible with the at-home AP

2

platform.

3

68.

The College Board’s announcement regarding test accommodations also

4

stated that “Students approved to use specific devices or aids may use what they have

5

access to at home.” In other words, The College Board would not be providing any of

6

these devices or aids, even if the students had access to them during AP exams taken at

7

school.

8
9

69.

Assuming the availability, willingness and ability of students’ household

members, the College Board stated that students approved for a reader or scribe “may be

10

assisted by a family or household member while testing.” These tasks are ordinarily

11

performed by a trained staff member at school during AP exams.

12

70.

Some students who were initially approved for 50% extended time were

13

initially told they had their 50% time built into the exams. On May 7, less than one

14

week before the AP exams were scheduled to begin, some, but not all, of those students

15

with the accommodation of 50% extended time were informed they would automatically

16

receive 100% extended time (those with 100% extended time did not get more time).

17

Students with this 50% extended time were informed this would take the place of their

18

breaks. Some students with 50% extended time did not want this additional time,

19

because they have to wait the time for each question of the exam has passed to move to

20

the next question.

21

71.

In addition, with the additional time, students who have two exams on one

22

day have little to no break between them. For example, there are exams scheduled at

23

11:00 a.m. and 1:00 p.m. on the same day. So, if a student with extended time has 90

24

minutes to finish the first exam at 11:00 a.m., he or she would have to start the 1:00 p.m.

25

exam immediately thereafter at 12:30 p.m. There is no time to take a break, as the AP

26

instructions specifically require students to log on 30 minutes before their exams

27

commence.

28
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72.

“Breaks-as-needed” is a common disability accommodation, especially for

2

students with medical issues such as diabetes. These students are generally not given

3

extended testing time, but their breaks do not count as part of their testing time. With

4

the 2020 format, there are no breaks at all.

5

73.

Many disability accommodations offered to the at-home AP examinees are

6

dependent upon access to purchased software. Other accommodations require the

7

availability of an adult who happens to be free during testing time. This available adult

8

must not be working remotely in the home, or outside of the home and must also be

9

qualified to act as a reader or a scribe according to the College Board’s detailed

10

standards. These required circumstances again weigh heavily in favor of wealthier

11

students who have access to purchase software and adults who have the luxury of time

12

to help them take their AP exams.

13

74.

All AP students were told that any disability accommodation requests

14

approved after the conversion to online testing would force them to forfeit their original

15

testing day and have only one opportunity to test. Some students needed to request

16

different or additional accommodations based upon exam’s format change.

17

75.

The at-home AP exams have not been validated for students with

18

disabilities or for students with these accommodations. The inequitable access to

19

available household members and the disparity in technology invalidate the at-home AP

20

exam results.

21

Public Charter School Students and Homeschool Students

22

76.

The change of the AP exam to the at-home format is only the final hurdle

23

for many students, and it is one hurdle that some students will never even reach. The

24

College Board denies access to students or causes them to incur additional costs to

25

access AP exams based solely on where they are enrolled in school.

26

77.

The College Board decides who will and who will not be able to access its

27

AP program and the associated secondary, postsecondary and financial aid

28

opportunities. The College Board does not allow access on an equal and nonpartisan
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basis and makes false claims regarding the availability of its programs in its written

2

materials. The College Board has been made aware that it excludes groups of students

3

from its programs and their benefits. However, it has not made any effort to remedy the

4

situation.

5

78.

The College Board determines what schools and what types of schools can

6

provide AP courses and administer AP exams. The College Board’s Level 1

7

authorization allows schools to provide AP courses to their students and receive their

8

students’ AP and other College Board test scores. Schools with Level 1 authorization

9

cannot administer AP or other College Board exams. The College Board’s Level 2

10

authorization allows schools to receive scores as well as administer AP Exams to their

11

students.
79.

12

The College Board has denied certain classes of schools, including public

13

charter schools, the opportunity to administer AP exams, if their curriculum is partially

14

or entirely non-classroom based. Even after the AP exams moved to an at-home format

15

this year, students who attended Level 1 schools were not permitted to register for AP

16

exams. This policy is discriminatory and deprives students of the financial opportunities

17

that the AP program affords students who pass the exams.
80.

18

In California, families have the option of sending their children to local

19

public schools, public charter schools or private schools. As of the 2017–18 school year,

20

the number of California students enrolled in charter schools was approximately

21

628,849, or approximately ten percent of the public school student population

22

in California.14 Approximately 25% of California charter schools are either partially or

23

exclusively non-classroom-based (independent study).
81.

24
25

There are approximately 120,000 public independent study high school

students in California.15 An estimated 15-20% of these independent study students have

26
27
28

14

https://www.cde.ca.gov/sp/ch/cefcharterschools.asp

15

Id.

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documented disabilities, and this number is on the rise due to the personalized learning

2

opportunities offered through independent study.

3

82.

The College Board does not allow public charter schools that offer

4

independent study programs or blended learning to administer AP exams to their own

5

students, even if they are qualified to teach the curriculum. There are countless other

6

small private schools, homeschool and religious schools that are not College Board-

7

approved test centers. Students at these schools have no access to AP exams or

8

additional barriers.

9

83.

Families at schools without the College Board’s approval to test are

10

required to find willing test centers on their own, without the assistance of the College

11

Board. If asked, the College Board will provide parents with a list of all local schools

12

that are approved to administer the AP exam, and parents can call around hoping to find

13

one that will accept their student. Based on Plaintiffs’ experiences, few schools actually

14

accept outside students, and the schools on the College Board’s lists may be hundreds of

15

miles away from their homes. Some schools that do agree to test outside students charge

16

exorbitant sums on top of the official test fees. Test centers that accept outside students

17

are generally less willing to accept disabled students with accommodations for AP

18

testing.

19

84.

The College Board’s policy says that “The AP Program encourages AP

20

coordinators to assist homeschooled students, students from virtual schools, and

21

students whose schools don’t offer AP Exams,” but there is no requirement that they do

22

so and no alternative if parents cannot locate a willing test center on their own.

23

85.

A.K. is a public charter school student with disabilities who resides in Long

24

Beach, California. His high school does not have authorization to administer AP exams.

25

One local high school would not administer A.K.’s AP exams with accommodations,

26

saying that it had a “limited number of proctors and it sounds like [the student] will

27

require a designated proctor because of the specific accommodations from the College

28

Board.”
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86.

Z.S. attends a public charter school that offers an independent study

2

curriculum. Z.S. and her siblings have always been educated through homeschooling or

3

through an independent study program due to religious reasons. Her school is not a

4

College Board-approved test center, but she wished to take the AP English exam after

5

having taken the course.

6

87.

In the Fall of 2019, Z.S.’s mother called approximately 14 schools in an

7

attempt to register her to take the AP exam. Her neighborhood high school would not

8

accept her for testing, and neither would any of the schools on the list provided to her by

9

the College Board. Z.S.’s mother finally heard of a school near her home that would test

10
11

outside students for an additional fee of $150 on top of her exam registration fee.
88.

Due to the testing difficulties, some Level 1 schools now discourage

12

enrollment in AP courses or have stopped offering them altogether, even though this

13

means that their students may forego the opportunity to earn the college credits (and

14

cost savings) that come along with those courses.

15

Background of Plaintiffs

16

FairTest:

17

89.

The National Center for Fair and Open Testing (“FairTest”) is a

18

Massachusetts public charity that operates in California, nationwide, and internationally.

19

FairTest’s mission is to advance quality education and equal opportunity by promoting

20

fair, open, and valid evaluations of students, teachers, and schools. FairTest also works

21

to end the testing practices that impede those goals, including standardized testing that

22

negatively impacts students with disabilities, underrepresented minorities, gender bias,

23

and dozens of other issues involving the fair evaluation of students, teachers, and

24

schools.

25

FairTest engages in three main activities:

26

1) Education of the public. FairTest serves as a unique source of information

27

about testing and alternatives for educators, parents, public officials, journalists

28

and policymakers.
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2) Advocacy. FairTest advocates on behalf of low income families, disabled

2

students and other marginalized student groups to close the gap in admissions

3

and outcomes. FairTest coordinates and catalyzes educators, citizen groups and

4

parents to bring about needed assessment reforms.

5

3) Strategic Assistance. FairTest provides training and advice to parents,
educators and a broad range of civil rights organizations about assessments.

6
7

90.

FairTest places special emphasis on eliminating the racial, class, gender,

8

and cultural barriers to equal opportunity posed by standardized tests. In pursuit of its

9

mission, FairTest provides information, technical assistance and advocacy on a broad

10

range of testing concerns, focusing on three main areas: K-12, college and university

11

admissions, and employment tests.

12

91.

Since the College Board announced its changes to the AP exam two

13

months ago, FairTest has expended significant resources addressing the issues

14

associated with the at-home exam and advocating for the student groups most affected.

15

In the past two months, FairTest has repeatedly communicated its concerns about the

16

2020 AP exams through social media, interviews with journalists, phone calls, and

17

emails.

18

92.

Specifically, FairTest emphasized the potential issues involving computer

19

equipment and technology, connectivity, the availability of legally required

20

accommodations, test security and score comparability. In the last week alone, Robert

21

Schaeffer, FairTests’ Interim Executive Director, communicated with dozens of

22

students, parents, and reporters specifically about the glitches and “snafus” that took

23

place during the first week of AP exams. Dozens of other queries were sent to FairTest's

24

general email box and referred for response.

25

93.

In the last week, Akil Bello, FairTest’s Senior Director of Advocacy and

26

Advancement, has responded to hundreds of emails about AP issues and recorded close

27

to 200 accounts of student testing issues. He has spent additional time advocating for

28

under-resourced students taking the AP exams this year through social media and
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interviews with reporters. In the last two weeks, nearly all of Mr. Bello’s time has been

2

devoted to AP-related issues.

3

94.

FairTest addresses multiple testing reform issues involving high stakes

4

testing, college admissions testing, mandatory state testing, K-12 admissions, as well as

5

graduation and promotion tests. Instead of expending its resources on the spectrum of

6

testing issues, FairTest has been forced to allocate a disproportionate amount of

7

resources in recent weeks to address the College Board’s AP failures.

8

R.G. on behalf of J.G.:

9

95.

R.G. is acting on behalf of her minor son J.G, who is a high school junior

10

enrolled in four (4) AP courses this year: AP Calculus AB, AP Chemistry, AP United

11

States History, and AP English Literature and Composition. He paid for and registered

12

to take all four AP exams. On Tuesday, May 12, 2020, J.G. took the AP Calculus AB

13

examination and successfully submitted his work in a JPEG format. The next day,

14

while using the same computer, the same browser, and connected to the same Wi-Fi

15

network in the same room in his home, he took the AP Chemistry exam; however, when

16

he attempted to submit his work in the same JPEG format, he received a message

17

stating: “there was an error, we did not receive your submission.”

18

96.

J.G. and his mother, R.G., immediately took a picture of his work, emailed

19

the College Board with his test work attached as a JPEG, and called the College Board.

20

They were unable to reach anyone after remaining on hold for 90 minutes.

21

97.

As a result, J.G. applied to take a Retake Examination. In the application,

22

he had to explain why he needed the retake. J.G. received a message saying that he be

23

notified the week of May 25, 2020, if he was accepted for a Retake, less than a week

24

before the Retake was scheduled to take place.

25

98.

After applying to retake the AP Chemistry exam, J.G. realized he will not

26

be able available to retake this test on the scheduled date because of a scheduling

27

conflict. If the College Board does not accept his work that was photographed, time-

28
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1

stamped, and promptly emailed to the College Board on May 13, 2020, he will not have

2

the opportunity to pass the test and receive the benefits of AP credit.

3

A.K.:

4

99.

Plaintiff A.K. is a graduating senior with learning disabilities including

5

ADHD, sensory motor dysfunction, and a speech and language disorder. When A.K.

6

was in his 9th grade year at a public charter school, his mother contacted the AP

7

Coordinator at the local public school in his district in Long Beach, California, and A.K.

8

was initially approved to take the AP examination at the high school. When A.K.’s

9

mother informed the AP Coordinator that A.K. needed accommodations for his AP

10

Exam, the AP Coordinator told her that the school could no longer administer the test

11

for A.K. because it did not have a proctor or a teacher available to administer his

12

accommodations.

13

100. A.K.’s high counselor contacted the College Board to see if the charter

14

school could administer the examination. The College Board denied the request, and

15

A.K. had to find an alternative location. A.K.’s mother finally made private

16

arrangements for A.K.’s high school counselor to proctor A.K.’s AP test at the local

17

public school. In this case, the student and his family were solely responsible for

18

finding the proctor and ensuring he could even take the examination, making access

19

challenging and unduly burdensome.

20

M.S. on behalf of Z.S.

21

101. Plaintiff M.S. is acting on behalf of her minor daughter Z.S., who both

22

reside in the Central District of California. Z.S. is currently enrolled in AP English

23

Literature and Composition, and she took the AP examination on May 13, 2020. Z.S.

24

suffers from severe test anxiety, even under ordinary testing conditions. Z.S.

25

experienced heightened anxiety and fear due to the technical challenges involved with

26

the administration and submission of the exam. Under these rushed and condensed

27

conditions, Z.S. did not have time to complete the AP English exam on May 13th;

28

however, she is not eligible to retake the exam. The College Board’s website policy
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expressly prohibits retakes of the examination when a student runs out of time:

2

“Running out of time to finish and submit your response is NOT an approved reason for

3

requesting a makeup test.”

4

J.P. on behalf of R.P.

5

102. Plaintiff J.P., on behalf of her minor son R.P. who is a sophomore at

6

Saugus High School, is currently enrolled in two AP classes, AP Chemistry and AP

7

World History. J.P. and R.P. live in the Central District. The AP Chemistry exam was

8

administered on May 20, 2020, the very day of the six-month anniversary of the tragic

9

Saugus school shooting.

10

103. Already under tremendous amounts of stress and anxiety due to COVID

11

and the anniversary of this horrific school event, R.P. began the AP Chemistry exam

12

and successfully submitted the answer to the first question. After finishing the second

13

of two questions with six minutes remaining, R.P. tried to submit his answer but

14

received an error message that his work would not upload, despite his careful attention

15

to following instructions. He and his mother actually practiced logging in, preparing,

16

and submitting answers the day prior to the real examination.

17

104. His mother J.P., an LAUSD teacher, immediately called the College Board.

18

After waiting on hold and transferring to several different departments, she finally

19

reached a customer service agent. J.P. asked whether College Board was experiencing

20

reports of similar technical problems, and rather than responding honestly, the College

21

Board customer service employee said they had received very few technical problem

22

reports, and blamed the student for using an out of date browser. R.P.’s browser was not

23

out of date.

24

105. J.P. asked if she could help her son R.P. submit the work, and was told no.

25

R.P. as a first week test-taker, does not have the same remedy nor did he have the same

26

test experience as the week two test-takers, who now have the opportunity to submit

27

their work if the College Board rejects submission attempts. R.P. has saved his entire

28
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1

answer, including the unsubmitted portion to question 2, and requests that the College

2

Board accept his work and grade his test answers.
CLASS ACTION ALLEGATIONS

3
4

PlaintiffS bring this action on his own behalf, and as a class action on behalf of

5

the Classes defined herein, pursuant to, and properly maintainable under Fed. R. Civ. P.

6

23(a) and Fed. R. Civ. P. 23(b)(3). The Classes consist of tens of thousands of students

7

victimized by Defendants’ unfair and illegal practices. Specifically, Plaintiffs brings

8

this suit on behalf of the following Classes:

9
10

The “Nationwide Class”: All persons who are or were students who did

11

not have fair and equal access to, or were not able to complete, the 2020

12

AP exams as a result of the College Board's decisions prior to the

13

administration of the exams. The class excludes counsel representing the

14

class and all persons employed by said counsel.

15
16

The Fair Access “California Subclass”: All persons who are or were

17

students who did not have fair and equal access to, or were not able to

18

complete, the 2020 AP exams as a result of the College Board decisions

19

prior to the administration of the exams. The class excludes counsel

20

representing the class and all persons employed by said counsel.

21
22

The Disabled Students “California Subclass”: All persons who are or

23

were disabled students who did not have fair and equal access to the AP

24

exams due to the College Board's decisions. The class excludes counsel

25

representing the class and all persons employed by said counsel.

26
27

The Under-Resourced “California Subclass”: All persons who are or

28

were under-resourced students who did not have fair and equal access to
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the AP exams due to the College Board's decisions. The class excludes

2

counsel representing the class and all persons employed by said counsel.

3
4

The Denied Access Students “California Subclass”: All persons who

5

are or were students who were denied access to, faced additional burdens,

6

or were not able to complete, the 2020 AP exams as a result of the College

7

Board decisions prior to the administration of the exams. The class

8

excludes counsel representing the class and all persons employed by said

9

counsel.

10
11

Numerosity: The proposed classes are so numerous that individual joinder of all

12

their members is impracticable. While the exact number and identities of the Class

13

Members are unknown at this time, such information can be ascertained through

14

appropriate investigation and discovery. The disposition of the claims of these Class

15

Members in a single class action will provide substantial benefits to all parties and to

16

the Court.

17

Typicality: Plaintiff’s claims are typical of the claims of his respective Classes in

18

that his claims arise from the same event or practice or course of conduct that gives rise

19

to the claims of other class members, and is based on the same legal theory as their

20

claims.

21

Adequacy of Representation: Plaintiffs will fairly and adequately represent and

22

protect the interests of the Classes. Undersigned counsel has substantial experience in

23

prosecuting complex lawsuits and class action litigation. Plaintiffs and undersigned

24

counsel are committed to vigorously prosecuting this action on behalf of the Classes,

25

and have the financial resources to do so. Neither Plaintiffs nor their counsel have any

26

interests adverse to the Classes.

27
28

Superiority of Class Action and Impracticability of Individual Actions: Plaintiffs
and the members of the Classes suffered harm as a result of the College Board
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Defendants’ unlawful conduct. A class action is superior to other available methods for

2

the fair and efficient adjudication of the controversy. Individual joinder of all members

3

of the Classes is impractical. Even if individual Class Members had the resources to

4

pursue individual litigation, it would be unduly burdensome to the courts in which the

5

individual litigation would proceed. Individual litigation magnifies the delay and

6

expense to all parties in the court system of resolving the controversies engendered by

7

the Defendants’ common course of conduct. The class action device allows a single

8

court to provide the benefits of unitary adjudication, judicial economy, and the fair and

9

equitable handling of all Class Members’ claims in a single forum. The conduct of this

10

action as a class action conserves the resources of the parties and of the judicial system,

11

and protects the rights of the Class Members. Adjudication of individual Class

12

Members’ claims with respect to Defendants would, as a practical matter, be dispositive

13

of the interests of other members not parties to the adjudication, and could substantially

14

impair or impede the ability of other Class Members to protect their interests.

15

Common Questions of Law and Fact Predominate: In addition, the requirements

16

of Federal Rule of Civil Procedure 23 are satisfied by questions of law and fact

17

common to the claims of Plaintiff and of each member of the Classes and which

18

predominate over any question of law or fact affecting only individual members of the

19

Classes. Common questions of law and fact include, but are not limited to, the

20

following:

21

a. The questions of law and fact common to the Nationwide Class include the

22

following: (1) were members of the Nationwide Class entitled to equal

23

access to the AP exams?; (2) did Defendants' practices constitute breach of

24

contract?; (3) did Defendants' practices constitute breach of implied

25

covenant of good faith and fair dealing?; (4) did Defendants’ practices

26

constitute negligence?; (5) did Defendants’ practices constitute negligent

27

misrepresentation?; (6) did Defendants’ practices constitute gross

28

negligence?; (7) did Defendants’ practices constitute unjust enrichment?;
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(8) did Defendants’ practices constitute breach of implied in fact contract?;

2

(9) did Defendants’ practices constitute breach of fiduciary duty?; (10) did

3

Defendants’ practices constitute violation of Americans with Disabilities

4

Act?; (11) did Defendants’ practices constitute violation of Unruh Act?;

5

(12) did Defendants’ practices constitute violation of Americans with

6

Disabilities Act Section 794?; (13) did Defendants’ practices constitute

7

violation of Americans with Disabilities Act Section 12101?; (14) did

8

Defendants’ practices constitute violation of Rehabilitation Act?; (15) did

9

Defendants’ practices constitute unfair competition?; (16) did Defendants’

10

practices constitute false advertising?; and (17) are members of the

11

Nationwide Class entitled to damages?

12

b. The questions of law and fact common to the California Subclasses include

13

the following: (1) were members of the California SubClass entitled to

14

equal access to the AP exams?; (2) did Defendants' practices constitute

15

breach of contract?; (3) did Defendants' practices constitute breach of

16

implied covenant of good faith and fair dealing?; (4) did Defendants’

17

practices constitute negligence?; (5) did Defendants’ practices constitute

18

negligent misrepresentation?; (6) did Defendants’ practices constitute gross

19

negligence?; (7) did Defendants’ practices constitute unjust enrichment?;

20

(8) did Defendants’ practices constitute breach of implied in fact contract?;

21

(9) did Defendants’ practices constitute breach of fiduciary duty?; (10) did

22

Defendants’ practices constitute violation of Americans with Disabilities

23

Act?; (11) did Defendants’ practices constitute violation of Unruh Act?;

24

(12) (12) did Defendants’ practices constitute violation of Rehabilitation

25

Act?; (15) did Defendants’ practices constitute unfair competition?; (16)

26

did Defendants’ practices constitute false advertising?; and (17) are

27

members of the California Sub Class entitled to damages?

28
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106. Notice: Notice can be provided via internet publication, published notice

1

and/or through the mail and paid for by the College Board.

2
3

FIRST CLAIM FOR RELIEF

4

BREACH OF CONTRACT
112. Plaintiffs repeat and incorporates by reference paragraphs 1 to 111 of this

5
6

Complaint.
113. Upon registration for the AP exams, the Class Members entered into an

7
8

agreement with the College Board wherein the College Board expressly recognizes its

9

obligation to ensure a fair and equitable opportunity to demonstrate college readiness

10

for every student and to prevent anyone from gaining an unfair advantage on the tests.
114. Defendants breached the agreement by failing to ensure a fair and equitable

11
12

testing opportunity and to prevent anyone from gaining an unfair advantage by the

13

College Board's distinctions between what is considered an official test site,

14

accommodations and bars to taking the exams.
115. As a direct result of Defendants' breach, Plaintiff and the Class suffered

15
16

damages.

17

SECOND CLAIM FOR RELIEF

18

BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
116. Plaintiffs repeat and incorporates by reference paragraphs 1 to 115 of this

19
20

Complaint.
117. Defendants breached the express contract provision obligating Defendants

21
22

to ensure a fair and equitable opportunity to demonstrate college readiness for every

23

student and to prevent anyone from gaining an unfair advantage on the AP exams.
118. As a direct result of Defendant's breach, Plaintiff and the Class suffered

24
25

damages.

26

///

27

///

28

///
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1

THIRD CLAIM FOR RELIEF

2

NEGLIGENCE

3
4
5

119. Plaintiffs repeat and incorporates by reference paragraphs 1 to 118 of this
Complaint.
120. Defendants, as owners, sponsors, developers and administrators of the AP

6

exams, respectively, had a duty to exercise reasonable care in providing the exams to

7

Plaintiff and the Class. Specifically, Defendants were under a duty to offer and

8

administer the exams in a fair and equitable manner and to safeguard the exams against

9

any foreseeable unfair advantages.

10
11
12

121. Defendants, through an affirmative and/or promised act, undertook to
render the exams in a fair and equitable manner, free from impropriety.
122. Defendants breached their duty by negligently offering and administering

13

the exams despite failing to ensure a fair and equitable testing opportunity and access

14

and failing to prevent anyone from gaining an unfair advantage by the College Board's

15

distinctions between what is considered an official test site, accommodations, and bars

16

to taking the exams.

17
18
19
20

123. Defendants' conduct foreseeably and substantially caused Plaintiff and the
Class to suffer damages.
124. Plaintiff and the Class suffered damages as a direct and proximate result of
Defendants' breach.

21

FOURTH CLAIM FOR RELIEF

22

NEGLIGENT MISREPRESENTATION

23
24
25
26
27
28

125. Plaintiffs repeat and incorporates by reference paragraphs 1 to 124 of this
Complaint.
126. Defendants misrepresented to Plaintiff and the Class that the AP exams
would be fairly and equitably offered and administered.
127. Based on the history of which types of students took these exams and the
College Board's active role in creating rules and barriers to entry to the exams,
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1

Defendants should have known that its representations regarding fairness, equity and

2

validity were false.

3

128. Defendants intended to induce Plaintiff and the Class to rely on the

4

misrepresentations in signing up for the exams and in trusting that Defendants were

5

administering the exams fairly.

6

129. Plaintiff and the Class acted in justifiable reliance upon the

7

misrepresentation by registering for and taking or not being able to take the exams,

8

resulting in injury to Plaintiff and the Class.

9

FIFTH CLAIM FOR RELIEF

10

GROSS NEGLIGENCE

11
12
13

130. Plaintiffs repeat and incorporates by reference paragraphs 1 to 129 of this
Complaint.
131. There is an imminently clear and present danger that the AP exams will be

14

administered unfairly and invalidly as there is no equal access to these exams for all

15

2020 AP exam takers, students with disabilities or under-resourced students, based on

16

fundamental flaws inherent to the College Board's requirements for access to these

17

exams.

18
19
20
21
22

132. There is also an imminently clear and present danger that the AP exams
will be exploited by individuals.
133. Defendants have knowledge of and/or awareness of the imminent danger of
unfair administration of these exams and the risk of exploitation.
134. Therefore, it is indisputably foreseeable that more students like those in this

23

class will be denied an equal opportunity to partake in these tests, which in turn will

24

affect their ability to show college readiness.

25
26

135. By failing to rectify the obvious flaw—unequal access—Defendants evince
a conscious disregard of the consequences.
As a result of Defendants gross negligence, Plaintiff and the Class suffered

27
28

damages.
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1

SIXTH CLAIM FOR RELIEF

2

UNJUST ENRICHMENT

3
4
5
6
7

136. Plaintiffs repeat and incorporates by reference paragraphs 1 to 135 of this
Complaint.
137. Plaintiff and the Class conferred benefits to Defendants by registering for,
paying for, and taking the exams.
138. Defendants knowingly and willingly retained the registration fees and

8

associated fees conferred in connection with registering for and taking the exams

9

despite knowing of these inequities.

10

139. Under the circumstances, it would be inequitable for Defendants to retain

11

this monetary benefit at the expense of Plaintiff and the Class.

12

140. Moreover, no adequate legal remedy exists.

13

141. As a direct result of Defendants' unjust enrichment, Plaintiff and the Class

14

have suffered injury and are entitled to reimbursement, restitution and disgorgement by

15

Defendants of the benefit conferred by Plaintiff and the Class.

16

142. Defendants benefited from their unlawful acts, as alleged herein, through

17

payment by Plaintiffs and the Class for the 2020 AP exams, and through the resulting

18

profits enjoyed by Defendants as a direct result of such payments.

19

143. As a direct and proximate result of Defendants' conduct, they have been

20

and continue to be unjustly enriched at the expense of, and to the detriment of, Plaintiffs

21

and the Class.

22

144. It would be against equity and good conscience to permit Defendants to

23

retain the benefit of these payments that were conferred by the Plaintiff and the Class

24

and retained by Defendants. The benefit held by Defendants rightly belongs to the

25

Plaintiffs and the Class, as the Plaintiff and the Class have paid for services that

26

Defendants failed and continue to fail to provide.

27

145. In equity, Defendants should not be allowed to retain the economic benefit

28

from their improper conduct and should be ordered to disgorge profits or pay restitution
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1

and pre-judgment interest to the Plaintiff and the Class, or in the alternative, ordered to

2

score the exams that were recorded and time-stamped immediately if the student is

3

unable to take a make-up test without charge on the date unilaterally scheduled by

4

Defendants.

5

SEVENTH CLAIM FOR RELIEF

6

BREACH OF IMPLIED IN FACT CONTRACT

7
8

146. Plaintiffs repeat and incorporates by reference paragraphs 1 to 145 of this
Complaint.

9

147. Defendants tacitly promised Plaintiff and the Class, as inferred in whole or

10

in part by its conduct, that it would fairly and equitably offer and administer the exams.

11

148. Under the circumstances, Plaintiff and the Class presumed based on

12

Defendants' conduct that the tests would be fairly and equitably offered and

13

administered.

14
15
16

149. Defendants breached the implied contract by failing to ensure a fair and
equitable testing opportunity for all students.
150. As a result of Defendants' breach, Plaintiff and the Class were damaged.

17

EIGHTH CLAIM FOR RELIEF

18

BREACH OF FIDUCIARY DUTY

19
20
21

151. Plaintiffs repeat and incorporates by reference paragraphs 1 to 150 of this
Complaint.
152. A fiduciary relationship between Plaintiffs and the Class and Defendants

22

exists. Defendants agreed to offer and administer fair and equitable exams for the

23

benefit of Plaintiff and the Class and were thereby granted a high degree of control and

24

discretionary power to do so, evidencing a high level of trust and confidence in and

25

reliance on Defendants to perform their duties.

26
27

153. Defendants breached their fiduciary duty by failing to administer the exams
and allow access to the exams in a fair and equitable manner.

28
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1
2

154. As a proximate result of Defendants' breach, Plaintiff and the Class
suffered damages.

3

NINTH CLAIM FOR RELIFF

4

VIOLATION OF AMERICANS WITH DISABILITIES ACT 42

5

USC SECTION 12101

6
7

155. Plaintiffs repeat and incorporates by reference paragraphs 1 to 154 of this
Complaint.

8

156. By creating barriers to access for these exams and failing to provide

9

appropriate accommodations for all students, whether disabled or in need of resources,

10

Defendants failed to prevent an unfair disadvantage for students with disabilities.

11

157. As a result of Defendants' breach of its duty to provide appropriate

12

accommodations and its violation of the ADA, Plaintiff and the Class were damaged.

13

TENTH CLAIM FOR RELIEF

14

VIOLATION OF UNRUH ACT CCC SECTION 51-DENIAL OF

15

OPPORTUNITIES FOR DISABLED AND

16

UNDERRESOURCED STUDENTS

17
18
19

158. Plaintiffs repeat and incorporates by reference paragraphs 1 to 157 of this
Complaint.
159. The Unruh Act provides: “All persons within the jurisdiction of this state

20

are free and equal, and no matter what their…disability…are entitled to the full and

21

equal accommodations, advantages, facilities, privileges, or services in all business

22

establishments of every kind whatsoever.” Cal. Civil Code Section 51(a). The Unruh

23

Act makes liable any person who “denies, aids or incites a denial, or makes any

24

discrimination or distinction” contrary to Section 51.

25

160. The Unruh Act provides that a “violation of the right of any individual

26

under the federal Americans with Disabilities Act of 1990…shall also constitute a

27

violation of this section.” Cal. Civil Code Section 51(f).

28
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- 37 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

1

161. Defendants have denied students with disabilities the same access other

2

students have to the AP exams. Defendants have therefore denied, aided, or incited a

3

denial, or made a discrimination or distinction contrary to Section 51 in doing so.

4
5

162. As a result of Defendants' breach of its duty to provide equal access to AP
exams and their violations of the Unruh Act, Plaintiff and the Class were damaged.

6

ELEVENTH CLAIM FOR RELIEF

7

VIOLATION OF REHABILITATION ACT

8
9

163. Plaintiffs repeat and incorporates by reference paragraphs 1 to 162 of this
Complaint.

10

164. By creating barriers to access for these exams and failing to provide

11

appropriate accommodations for disabled students, Defendants failed to ensure that the

12

students with disabilities would have equitable access and opportunity to take these

13

exams and participate equally in college admissions by failing to provide adequate

14

accommodations.

15

165. As a result of Defendants' breach of their duty to ensure that disabled

16

students would have equitable access and opportunity to take the AP exams and its

17

violation of the Rehabilitation Act, Plaintiff and the Class were damaged.

18

TWELVTH CLAIM FOR RELIEF

19

UNFAIR COMPETITION, BUSINESS AND PROFESSIONS

20

CODE SECTION 17200

21
22
23

166. Plaintiffs repeat and incorporates by reference paragraphs 1 to 165 of this
Complaint.
167. California Business & Professions Code Section 17200 et seq., also known

24

as the California Unfair Competition Law (“UCL”), prohibits acts of “unfair

25

competition” including any unlawful, unfair, fraudulent or deceptive business act or

26

practice as well as “unfair, deceptive, untrue or misleading advertising.”

27
28
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- 38 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

168. By engaging in the unlawful conduct alleged above, Defendants have

1
2

engaged in unlawful business acts and practices in violation of the UCL by violating

3

state and federal laws including but not limited to the ADA and the Unruh Act.
169. As a result of Defendants' violation of Business & Professions Code

4
5

Section 17200, Plaintiff and the Class were damaged.

6

THIRTEENTH CLAIM FOR RELIEF

7

FALSE ADVERTISING, BUSINESS AND PROFESSIONS CODE

8

SECTION 17500
170. Plaintiffs repeat and incorporates by reference paragraphs 1 to 169 of this

9
10

Complaint.
171. California Business & Professions Code Section 17500 prohibits acts of

11
12

“untrue or misleading” advertising.
172. By engaging in the unlawful conduct alleged above, including the issuance

13
14

of false statements regarding the percentage of students who faced technological

15

obstacles with submitting their exam answers, Defendants have engaged in unlawful

16

business acts and practices in violation of Business & Professions Code Section 17500

17

by violating state and federal laws including, but not limited to the prohibition against

18

false advertising.
173. As a result of Defendants' violation of Business & Professions Code

19
20

Section 17500, Plaintiff and the Class were damaged.

21
22

PRAYER FOR RELIEF

23

WHEREFORE, Plaintiffs pray for judgment against Defendants as follows:

24

86.

Plaintiffs seek to recover the following damages and obtain the following

25

relief from Defendants:

26

///

27

///

28

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899-5656-0001

- 39 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

ON THE CAUSE OF ACTION FOR BREACH OF CONTRACT

1

1.

2

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

3
4

2.

Economic loss and damages suffered by Plaintiffs.

5

3.

For attorneys’ fees incurred herein, to the extent permitted by law.

6

4.

Court costs.

7

5.

For pre and post judgment interest and costs of suit incurred herein.

8

6.

For such other relief to which Plaintiffs may show themselves justly
entitled.

9

7.

10

For injunctive relief requiring injunctive relief the College Board to accept
any test answers from last week’s test by time stamp, photo and email.

11
12
13

ON THE CAUSE OF ACTION FOR BREACH OF IMPLIED COVENANT

14

OF GOOD FAITH AND FAIR DEALING
1.

15

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

16
17

2.

An injunction precluding the wrongful conduct described herein.

18

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

19

4.

20

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

21
22

5.

For pre and post judgment interest and costs of suit incurred herein.

23

6.

For attorneys’ fees incurred herein, to the extent permitted by law.

24

7.

For such other and further relief as the Court may deem just and proper.

25

///

26

///

27

///

28

///
899-5656-0001

- 40 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

ON THE CAUSE OF ACTION FOR NEGLIGENCE

1

1.

2

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

3
4

2.

An injunction precluding the wrongful conduct described herein.

5

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

6

4.

7

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

8
9

5.

For pre and post judgment interest and costs of suit incurred herein.

10

6.

For attorneys’ fees incurred herein, to the extent permitted by law.

11

7.

For such other and further relief as the Court may deem just and proper.

12

8.

For injunctive relief requiring injunctive relief the College Board to accept
any test answers from last week’s test by time stamp, photo and email.

13
14

ON THE CAUSE OF ACTION FOR NEGLIGENT MISREPRESENTATION

15

1.

16

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

17
18

2

An injunction precluding the wrongful conduct described herein.

19

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

20

4.

21

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

22
23

5.

For pre and post judgment interest and costs of suit incurred herein.

24

6.

For attorneys’ fees incurred herein, to the extent permitted by law.

25

7.

For such other and further relief as the Court may deem just and proper.

26

///

27

///

28

///
899-5656-0001

- 41 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

ON THE CAUSE OF ACTION FOR GROSS NEGLIGENCE

1

1.

2

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

3
4

2.

An injunction precluding the wrongful conduct described herein.

5

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

6

4.

7

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

8
9

5.

For pre and post judgment interest and costs of suit incurred herein.

10

6.

For attorneys’ fees incurred herein, to the extent permitted by law.

11

7.

For such other and further relief as the Court may deem just and proper.

12

8.

For injunctive relief requiring injunctive relief the College Board to accept
any test answers from last week’s test by time stamp, photo and email.

13
14

ON THE CAUSE OF ACTION FOR UNJUST ENRICHMENT

15

1.

16

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

17
18

2.

An injunction precluding the wrongful conduct described herein.

19

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

20

4.

21

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

22
23

5.

For pre and post judgment interest and costs of suit incurred herein.

24

6.

For attorneys’ fees incurred herein, to the extent permitted by law.

25

7.

For such other and further relief as the Court may deem just and proper.

26

///

27

///

28

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899-5656-0001

- 42 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

1

ON THE CAUSE OF ACTION FOR BREACH OF IMPLIED

2

IN FACT CONTRACT

3

1.

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

4
5

2.

An injunction precluding the wrongful conduct described herein.

6

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

7
8

4.

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

9
10

5.

For pre and post judgment interest and costs of suit incurred herein.

11

6.

For attorneys’ fees incurred herein, to the extent permitted by law.

12

7.

For such other and further relief as the Court may deem just and proper.

13

8.

For injunctive relief requiring injunctive relief the College Board to accept
any test answers from last week’s test by time stamp, photo and email.

14
15
16
17

ON THE CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY
1.

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

18
19

2.

An injunction precluding the wrongful conduct described herein.

20

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

21
22

4.

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

23
24

5.

For pre and post judgment interest and costs of suit incurred herein.

25

6.

For attorneys’ fees incurred herein, to the extent permitted by law.

26

7.

For such other and further relief as the Court may deem just and proper.

27

8.

For injunctive relief requiring injunctive relief the College Board to accept
any test answers from last week’s test by time stamp, photo and email.

28
899-5656-0001

- 43 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

1

ON THE CAUSE OF ACTION FOR VIOLATION OF AMERICANS

2

WITH DISABILITIES ACT 42 USC SECTION 12101
1.

3

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

4
5

2.

An injunction precluding the wrongful conduct described herein.

6

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

7

4.

8

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

9
10

5.

For pre and post judgment interest and costs of suit incurred herein.

11

6.

For attorneys’ fees incurred herein, to the extent permitted by law.

12

7.

For such other and further relief as the Court may deem just and proper.

13
14

ON THE CAUSE OF ACTION FOR VIOLATION OF UNRUH ACT CCC

15

SECTION 51-DENIAL OF OPPORTUNITIES
1.

16

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

17
18

2.

An injunction precluding the wrongful conduct described herein.

19

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

20
21

4.

For statutory damages as set forth under the Unruh Act.

22

5.

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

23
24

6.

For pre and post judgment interest and costs of suit incurred herein.

25

7.

For attorneys’ fees incurred herein, to the extent permitted by law.

26

8.

For such other and further relief as the Court may deem just and proper.

27

///

28

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899-5656-0001

- 44 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

1

ON THE CAUSE OF ACTION FOR UNFAIR COMPETITION, BUSINESS

2

AND PROFESSIONS CODE SECTION 17200
1.

3

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

4
5

2.

An injunction precluding the wrongful conduct described herein.

6

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

7
8

4.

For restitution as set forth in Business & Professions Code 17200.

9

5.

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

10
11

6.

For pre and post judgment interest and costs of suit incurred herein.

12

7.

For attorneys’ fees incurred herein, to the extent permitted by law.

13

8.

For such other and further relief as the Court may deem just and proper.

14
15

ON THE FIFTEENTH CAUSE OF ACTION FOR FALSE ADVERTISING,

16

BUSINESS AND PROFESSIONS CODE SECTION 17500
1.

17

An Order certifying that the action be maintained as a class action under
Rule 23(b)(2) and/or Rule 23(b)(3) of the Federal Rules of Civil Procedure.

18
19

2.

An injunction precluding the wrongful conduct described herein.

20

3.

For compensatory damages in an amount that exceeds $500 million, with
the exact amount to be proven at trial.

21
22

4.

For restitution as set forth in Business & Professions Code section 17500.

23

5.

For punitive damages in an amount sufficient to punish Defendants and to
deter them from engaging in wrongful conduct in the future.

24

6.

25
26

///

27

///

28

For pre and post judgment interest and costs of suit incurred herein.

///
899-5656-0001

- 45 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL

1

7.

For attorneys’ fees incurred herein, to the extent permitted by law.

2

8.

For such other and further relief as the Court may deem just and proper.

3
4

DATED: May 19, 2020

By /s/ PHILLIP A. BAKER
PHILLIP A. BAKER
JENNIFER L. STONE

5
6
7

MILLER ADVOCACY GROUP

8

By /s/ MARCI LERNER MILLER
MARCI LERNER MILLER
CHRISTINA N. HOFFMAN
Attorneys for Plaintiffs

9
10
11
12
13
14
15
16

BAKER, KEENER & NAHRA, LLP

JURY DEMAND
Plaintiffs hereby demand a trial by jury on all issues so triable.
DATED: May 19, 2020

BAKER, KEENER & NAHRA, LLP
By /s/ PHILLIP A. BAKER
PHILLIP A. BAKER
JENNIFER L. STONE

17
18

MILLER ADVOCACY GROUP

19

By /s/ MARCI LERNER MILLER
MARCI LERNER MILLER
CHRISTINA N. HOFFMAN
Attorneys for Plaintiffs

20
21
22
23
24
25
26
27
28
899-5656-0001

- 46 NATIONWIDE AND CALIFORNIA CLASS ACTION COMPLAINT & DEMAND JURY TRIAL