VAZQUEZ v. GROUPON, INC. et al

Filing 2

NOTICE of filing pleadings with the Judicial Panel on Multidistrict Litigation by ANTHONY FERREIRA and SARAH GOSLING. (Attachments: # 1 Motion to Transfer, # 2 Brief in Support of Motion to Transfer, # 3 Schedule of Actions, # 4 Jensen Declaration, # 5 Exhibit 1 to Declaration, # 6 Exhibit 2 to Declaration, # 7 Exhibit 3 to Declaration, # 8 Exhibit 4 to Declaration, # 9 Exhibit 5 to Declaration, # 10 Exhibit 6 to Declaration, # 11 Exhibit 7 to Declaration, # 12 Exhibit 8 to Declaration, # 13 Exhibit 9 to Declaration, # 14 Certificate of Service, # 15 Corrected Certificate of Service)(tnr, )

VAZQUEZ v. GROUPON, INC. et al

Doc. 2 Att. 7

EXHIBIT 3

Dockets.Justia.com

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1 ROBBINS GELLER RUDMAN & DOWD LLP 2 JOHN J. STOIA, JR. (141757) RACHEL L. JENSEN (211456) 3 PHONG L. TRAN (204961) 655 West Broadway, Suite 1900 4 San Diego, CA 92101 Telephone: [phone] (fax) 6 Attorneys for Plaintiff 7 8 9 10 11 ) 12 ANTHONY FERREIRA, on Behalf of Himself ) and All Others Similarly Situated and the ) 13 General Public, ) ) Plaintiff, 14 ) ) vs. 15 ) ) GROUPON, INC., NORDSTROM, INC., 16 ) Individually and on Behalf of All Similarly ) Situated Entities, and DOES 1 through 100, 17 ) inclusive, ) 18 ) Defendants. ) 19 20 21 22 23 24 DEMAND FOR JURY TRIAL 25 26 27 28 No. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

'11CV0132 DMS POR

CLASS ACTION COMPLAINT FOR: (1) VIOLATIONS OF THE CREDIT CARD ACCOUNTABILITY RESPONSIBILITY AND DISCLOSURE ACT AND THE ELECTRONIC FUNDS TRANSFER ACT, 15 U.S.C. §1693 et seq.; (2) VIOLATION OF THE UNFAIR COMPETITION LAW, CALIFORNIA BUSINESS AND PROFESSIONS CODE §17200 et seq.; (3) VIOLATIONS OF THE FALSE ADVERTISING LAW, CALIFORNIA BUSINESS AND PROFESSIONS CODE §17500 et seq.; (4) VIOLATIONS OF THE CONSUMER LEGAL REMEDIES ACT, CALIFORNIA CIVIL CODE §1750 et seq.; AND (5) UNJUST ENRICHMENT

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Plaintiff Anthony Ferreira ("Plaintiff"), by and through his undersigned attorneys, brings this

2 action on behalf of himself and on behalf of a Class of all others similarly-situated, against 3 Defendants Groupon, Inc., Nordstrom, Inc. and the Defendant Retail Class, as defined below, for 4 compensatory damages and equitable, injunctive, and declaratory relief. Plaintiff alleges the 5 following upon information and belief based on the investigation of counsel, except as to those 6 allegations which specifically pertain to Plaintiff (which are alleged upon personal knowledge). 7 8 1. NATURE OF THE ACTION Plaintiff brings this action on behalf of himself and other similarly-situated consumers

9 nationwide who purchased gift certificates for products and services from Groupon, Inc. 10 ("Groupon"). These gift certificates, referred to and marketed as "groupons," are sold and issued 11 with expiration dates that are deceptive and illegal under both federal and state laws. 12 2. Groupon is a web-based company that purports to offer discounted deals on a wide

13 variety of products and services, including restaurants and bars, salons and spas, clothing and other 14 retail items, and dance classes and other instructional lessons, among other things. 15 3. Groupon's business model is based on offering discounts to consumers en masse by

16 directly partnering with retail businesses that provide the products or services. Groupon promises to 17 increase the sales volume of its retail partners by sending out "Daily Deal" e-mails to its massive 18 subscription base (comprised of tens of millions of consumers nationwide), highlighting and 19 promoting the products and services of its retail partners. 20 4. Groupon and its retailer partners share in revenues from "groupon" sales. Once

21 consumers agree to purchase a minimum, specified number of "groupon" gift certificates for a 22 particular "Daily Deal," the "Deal" is triggered, and Groupon charges each consumer the advertised 23 purchase amount. Groupon then sends a confirmatory e-mail to each purchasing consumer with a 24 link to its website for downloading and printing the "groupon" gift certificate, which then may be 25 redeemed with the retail business offering the product or service for a limited period of time. 26 5. Groupon partners with hundreds, if not thousands, of retail businesses around the

27 country, including large, nationwide companies such as Nordstrom, Inc. ("Nordstrom"). 28
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6.

The problem with Groupon's business model is that Groupon and its retail partners,

2 including Nordstrom, sell and issue "groupon" gift certificates with relatively short expiration dates, 3 knowing that many consumers will not use the gift certificates prior to the expiration date. However, 4 the Credit Card Accountability Responsibility and Disclosure Act ("CARD Act") and the Electronic 5 Funds Transfer Act ("EFTA"), 15 U.S.C. §1693 et seq., specifically prohibit the sale and issuance of 6 gift certificates, such as "groupons," with expiration dates. Similarly, California Civil Code §1749.5 7 prohibits the sale and issuance of gift certificates with expiration dates. 8 7. Groupon's systematic placement of expiration dates on its gift certificates is deceptive

9 and harmful to consumers. Groupon effectively creates a sense of urgency among consumers to 10 quickly purchase "groupon" gift certificates by offering "Daily Deals" for a short amount of time, 11 usually a 24-hour period. Consumers therefore feel pressured and are rushed into buying the gift 12 certificates and unwittingly become subject to the onerous sales conditions imposed by Groupon, 13 including illegal expiration terms, which are relatively short, often just a few months. 14 8. Groupon and its retail partners, including Nordstrom, bank on the fact that consumers

15 often will not manage to redeem "groupon" gift certificates before the limited expiration period ­ 16 therefore, many consumers are left with nothing, despite already having paid for the particular 17 service or product. Accordingly, Groupon and its retail partners reap a substantial windfall from the 18 sale of gift certificates that are not redeemed before expiration, which is precisely the type of 19 harmful business conduct that both Congress and the California State Legislature intended to 20 prohibit. 21 9. Plaintiff, like many unsuspecting consumers nationwide, fell victim to Groupon's

22 deceptive and unlawful illegal conduct and purchased a "groupon" gift certificate bearing an illegal 23 expiration date. 24 10. Plaintiff, on behalf of himself and the Class, therefore brings this class action against

25 Groupon, Nordstrom and the Defendant Retail Class, as defined below, and Does 1 through 100, 26 inclusive (collectively "Defendants") for equitable (injunctive and/or declaratory) relief, violations 27 of the CARD Act and the EFTA, 15 U.S.C. §1693 et seq.; California's Unfair Competition Law, 28 Cal. Bus. & Prof. Code §17200 et seq. ("UCL" or "17200"); the False Advertising Law, Cal. Bus &
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1 Prof. Code §17500 et seq. ("FAL" or "17500"); Consumer Legal Remedies Act, Cal. Civ. Code 2 §1750 et seq. ("CLRA"); and unjust enrichment. Plaintiff seeks damages and equitable relief on 3 behalf of himself and the Class, which relief includes, but is not limited to, full refunds for Plaintiff 4 and Class members, compensatory and punitive damages, an order enjoining Defendants and the 5 Defendant Retail Class from selling and issuing "groupon" gift certificates with expiration dates and 6 other onerous terms, costs and expenses, as well as Plaintiff's reasonable attorneys' fees and expert 7 fees, and any additional relief that this Court determines to be necessary or appropriate to provide 8 complete relief to Plaintiff and the Class. 9 10 11. PARTIES At all times relevant to this matter, Plaintiff, Anthony Ferreira, resided and continues

11 to reside in San Diego, California. During the relevant time period, Mr. Ferreira received offers for 12 discounted products and services from Groupon and purchased a "groupon" gift certificate based on 13 representations and claims made by Groupon. The "groupon" gift certificate purchased by 14 Mr. Ferreira was subject to an illegal expiration date. 15 12. Defendant, Groupon, Inc., is a privately-held company incorporated under the laws of

16 the state of Delaware. Groupon's corporate headquarters is located in Chicago, Illinois. Groupon 17 also maintains an office in Palo Alto, California. Groupon is registered to do business in the state of 18 California and does business in the state of California. Groupon markets, sells and issues its 19 "groupon" gift certificates to millions of consumers throughout the United States, including 20 hundreds of thousands of consumers in California and in San Diego County. 21 13. Defendant, Nordstrom, Inc., is a leading specialty retailer with more than 200 stores

22 located in 28 different states. In addition to its flagship retail stores, Nordstrom operates a chain of 23 clearance stores called Nordstrom Rack. Nordstrom is a Washington corporation with its principal 24 executive offices located in Seattle, Washington. Nordstrom is registered to do business in the state 25 of California, and does business in the state of California. At all relevant times, Nordstrom operated 26 and continues to operate retail stores, including Nordstrom Rack stores, in California and in San 27 Diego County. Groupon, on behalf of Nordstrom and under an agreement with Nordstrom, 28
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1 marketed, sold and issued "groupon" gift certificates for Nordstrom Rack products to Class members 2 thought the country, in California, and in San Diego County. 3 14. Nordstrom is being sued individually and on behalf of a Defendant Retail Class of

4 business entities all over the United States that enter agreements and/or partner with Groupon to sell 5 and issue "groupon" gift certificates with expiration dates. 6 15. The true names and capacities of Defendants sued herein as Does 1 through 100,

7 inclusive, are presently unknown to Plaintiff who therefore sues these Defendants by fictitious 8 names. Plaintiffs will amend this Complaint to show their true names and capacities when they have 9 been ascertained. Each of the Doe Defendants is responsible in some manner for the conduct alleged 10 herein. 11 12 16. JURISDICTION AND VENUE This Court has jurisdiction over this action pursuant to 28 U.S.C. §1332 and the Class

13 Action Fairness Act of 2005, 28 U.S.C. §1332(d)(2). The matter in controversy in this class action 14 exceeds $5,000,000, exclusive of interest and costs, and some members of the class are citizens of 15 states other than the states in which Defendants are incorporated and have their principal place of 16 business. In addition, pursuant to 28 U.S.C. §1367, this Court has supplemental jurisdiction over 17 Plaintiff's state law claims. 18 17. This Court has personal jurisdiction over Groupon and Nordstrom because they are

19 authorized to do business and have conducted business in California, they have specifically 20 marketed, sold and issued "groupon" gift certificates in California, they have sufficient minimum 21 contacts with this State, and/or sufficiently avail themselves to the markets of this State through their 22 promotion, sales, and marketing within this State to render the exercise of jurisdiction by this Court 23 permissible. 24 18. Venue is proper in this District pursuant to 28 U.S.C. §§1391(a) and (b), because a

25 substantial part of the events or omissions giving rise to Plaintiff's claims occurred in this judicial 26 district. Venue is also proper under 18 U.S.C. §1965(a) because Defendants transact substantial 27 business in this District. 28
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1 2 3 19. 4 5 A.

FACTUAL ALLEGATIONS Defendants' Scheme to Sell and Issue Gift Certificates with Illegal Expiration Dates Launched in November 2008, Groupon is a "social promotions" website that

promises consumers discounted deals on various products and services, purportedly through the power of "collective buying." To take advantage of the deals offered by Groupon, consumers must 6 sign-up and provide their e-mail address and other information to Groupon. Close to 40 million 7 people worldwide reportedly have signed-up to receive offers from Groupon. 8 20. 9 Deal" e-mail, promoting the particular products or services of the retail businesses with which it has 10 partnered. To trigger the "Daily Deal," consumers must purchase a specified number of "groupon" 11 gift certificates for the particular product or service offered that day. Groupon sends targeted "Daily 12 Deal" e-mails to close to 90 cities throughout the United States. 13 21. 14 Groupon offers the "Daily Deal" for a limited amount of time, usually a 24-hour period. This creates 15 a "shopping frenzy" among consumers who feel pressured to purchase "groupon" gift certificates as 16 quickly as possible. Consumers purchase "groupon" gift certificates directly through Groupon's 17 website, using their credit or debit cards. 18 22. 19 and stoke demand for its "Daily Deals," creating additional pressure among consumers to buy 20 "groupon" gift certificates before time runs out. 21 23. 22 particular "Daily Deal," the "Deal" is officially on, and consumers are charged for the purchase. 23 Groupon subsequently sends a confirmatory e-mail to purchasers with a link to its website, through 24 which purchasers may download and print their "groupon" gift certificates. Consumers may also 25 purchase and download "groupon" gift certificates directly to their mobile phones using an 26 application available on Groupon's website. "Groupon" gift certificates thereafter may be directly 27 redeemed with the retail businesses offering the products and services. 28
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Every weekday, Groupon sends subscribers in each of the cities it operates a "Daily

To arouse consumer interest and create the urgency to buy "groupon" gift certificates,

Groupon also uses electronic social media, such as Facebook and Twitter, to promote

Once Groupon sells the specified number of "groupon" gift certificates for a

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24.

Groupon imposes illegal expiration dates, among other onerous conditions, on each

2 "groupon" gift certificate it sells and issues, to the detriment of consumers. The expiration periods 3 on "groupon" gift certificates frequently range just a few months from the date of purchase. 4 Ironically, Groupon knows that after it has driven consumers to purchase "groupon" gift certificates 5 as quickly as possible, many consumers ultimately will be unable to redeem the gift certificates 6 before the expiration period. 7 25. Accordingly, consumers often cannot take advantage and use the product or service

8 for which they paid before the expiration period imposed by Groupon ­ leaving a substantial 9 windfall for Groupon and its retail partners. 10 26. In addition to imposing illegal expiration periods, Groupon foists other deceptive and

11 unfair conditions on consumers. Groupon requires consumers to redeem "groupon" gift certificates 12 in the course of a single transaction. Consumers therefore are forced to redeem their gift certificates 13 all at once and cannot use their the gift certificates for multiple transactions or on multiple occasions. 14 Likewise, consumers cannot redeem any unused portion of "groupon" gift certificates for the cash 15 amount. Groupon essentially places handcuffs on the manner in which consumers can redeem their 16 gift certificates for the products and services offered, even though consumers have already paid in 17 full for such products and services. 18 19 27. 20 products or services by purchasing "groupon" gift certificates, and the retail businesses who partner 21 with Groupon to promote their products and services. These retail businesses are willing to partner 22 with Groupon and offer their products and services at a discount because Groupon promises to 23 promote their products and services to its huge subscription base and guarantees them a specified 24 volume of business. In fact, Groupon promises its retail partners that its "Daily Deal" promotion 25 will bring them new customers "overnight." 26 28. 27 as Nordstrom. Hoping to bolster slumping retail sales and capitalize on the 2010 holiday shopping 28
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B.

Groupon's Retail Business Partners Agree to Sell Gift Certificates with Illegal Expiration Dates Groupon focuses on two markets ­ the consumers who wish to obtain the advertised

Groupon partners with both local businesses and large, nationwide companies, such

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1 season, Nordstrom teamed up with Groupon to promote its chain of discount clearance stores, 2 Nordstrom Rack, and offered a Nordstrom Rack "Daily Deal" in late November 2010. The 3 promotion was wildly successful as tens of thousands of consumers nationwide flocked to purchase 4 Nordstrom Rack "groupons." All of these Nordstrom Rack "groupons" were sold and issued with 5 illegal expiration terms. 6 29. Groupon's business model, particularly its ability to establish partnerships with retail

7 businesses nationwide, including Nordstrom and other members of the Defendant Retail Class, 8 depends in large part on its systematic use of illegal expiration dates. Groupon knows that its retail 9 partners are not willing to offer their products and services at a discount to consumers through the 10 sale of "groupon" gift certificates, without an agreement to limit the time period for which 11 consumers can redeem the gift certificates. Accordingly, Groupon and its retail partners, including 12 Nordstrom, continue to flaunt the law by imposing illegal expiration dates on the "groupon" gift 13 certificates sold to consumers. 14 30. Groupon reaps massive profits from this business model. Groupon typically takes for

15 itself half (50%) on the sale of each "groupon" gift certificate. Groupon reportedly made half a 16 billion dollars from "groupon" sales in 2010 alone. 17 18 31. 19 e-mail offer from Groupon for Nordstrom Rack "groupon" gift certificates. 20 32. 21 Ferreira was required to pay $25.00 to Groupon in exchange for a "groupon" gift certificate 22 redeemable for $50.00 worth of apparel, shoes, accessories and other retail products at Nordstrom 23 Rack. 24 33. 25 "groupon" gift certificate "Expires Dec 31, 2010." "The Fine Print" section also imposed the 26 following conditions: "Limit 1/person. Valid at all Nordstrom Rack locations. In-store only. Not 27 valid for gift cards. Not valid with other offers or discounts." 28
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C.

Plaintiff Ferreira's Purchase of a Nordstrom Rack Groupon with an Illegal Expiration Date On or about November 21, 2010, Plaintiff Anthony Ferreira received a "Daily Deal"

Under the terms of the "Daily Deal" offer, as set forth on Groupon's website, Mr.

"The Fine Print" section of the "Daily Deal" offer stated that the Nordstrom Rack

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34.

Mr. Ferreira purchased a single "groupon" gift certificate for Nordstrom Rack and

2 made payment of $25.00 to Groupon through Groupon's website. 3 35. Mr. Ferreira subsequently received an e-mail from Groupon confirming his purchase

4 of a Nordstrom "groupon" gift certificate. The e-mail contained a link to Groupon's website from 5 which Mr. Ferreira could download and print the "groupon" gift certificate. 6 36. Mr. Ferreira was unable to redeem the "groupon" gift certificate before the

7 December 31, 2010 expiration period imposed by Groupon. After the expiration date, Mr. Ferreira 8 believed that the "groupon" gift certificate he had purchased was no longer valid and could not be 9 redeemed. 10 11 37. CLASS ALLEGATIONS Plaintiff brings this nationwide class action lawsuit on behalf of himself and the

12 proposed Class members under Rule 23(b)(2) and (b)(3) of the Federal Rules of Civil Procedure. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 38. Plaintiff seeks certification of the following classes:

Plaintiff Class (the "Class" and "Class members"): All persons who purchased or acquired a "groupon" gift certificate from Groupon with an expiration date of less than five years from the date of purchase. Specifically excluded from the Class are Defendants, officers, directors or employees of Groupon or Nordstrom, any entity in which any defendants have a controlling interest and any of the affiliates, legal representatives, heirs, or assigns of Defendants. Plaintiff reserves his right to amend the Class definition if discovery and further investigation reveal that the Class should be expanded or otherwise modified. Defendant Retail Class: All persons or entities that contract and/or partner with Groupon to promote their products and/or services using "groupon" gift certificates with expiration dates. 39. Numerosity. The Plaintiff Class comprises millions of consumers throughout

27 California and the United States. Upon information and belief, the Defendant Retail Class is 28
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1 comprised of more than a 1,000 entities doing business in the United States. The Classes are so 2 numerous that joinder of all members of the Classes is impracticable. 3 40. Commonality and Predominance. Common questions of law and fact exist as to

4 Plaintiff and all Class members and predominant over any questions which affect only individual 5 members of the Class. These common questions of law and fact include, without limitation: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 41. (e) (d) (c) (b) (a) Whether Groupon, in conjunction with Nordstrom and the Defendant Retail Class, sold and issued "groupon" gift certificates featuring and subject to expiration dates; Whether Defendants and the Defendant Retail Class' imposition of expiration dates on "groupon" gift certificates violates federal and/or California state laws; Whether Defendants and the Defendant Retail Class engaged in deceptive and unfair business and trade practices related to the imposition of expiration dates on "groupon" gift certificates and other onerous terms and conditions; Whether Plaintiff and Class members are entitled to declaratory, injunctive and/or equitable relief; and Whether Plaintiff and Class members are entitled to compensatory damages, including actual and statutory damages. Typicality. Plaintiff's claims are typical to the claims of Class members. Plaintiff

20 and the members of the Plaintiff Class sustained damages arising out of Defendants and the 21 Defendant Retail Class' common course of conduct in violation of law as complained of herein. The 22 damages of each Class member was caused directly by Defendants and the Defendant Retail Class' 23 wrongful conduct in violation of law as alleged herein. 24 42. Adequacy. Plaintiff will fairly and adequately protect the interests of the Plaintiff

25 Class. Plaintiff is an adequate representative of the Plaintiff Class and has no interests which are 26 adverse to the interests of absent class members. Plaintiff has retained counsel who have substantial 27 experience and success in the prosecution of complex class action and consumer protection 28 litigation. Nordstrom is an adequate representative of the Defendant Retail Class because it is a
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1 large, nationwide company that entered into agreements and/or partnered with Groupon to sell and 2 issue "groupon" gift certificates with expiration dates. Nordstrom has the financial resources 3 necessary to defend this action on behalf of itself and the Defendant Retail Class, and is motivated to 4 vigorously defend this action given its joint and several, if not ultimate, liability for the acts 5 complained of herein. 6 43. Superiority. A class action is superior to other available means for the fair and

7 efficient adjudication of this controversy since individual joinder of all Class members is 8 impracticable. Class action treatment will permit a large number of similarly situated persons to 9 prosecute their common claims in a single forum simultaneously, efficiently and without the 10 unnecessary duplication of effort and expense that numerous actions would engender. Furthermore, 11 the expenses and burden of individual litigants and the lack of knowledge of Class members 12 regarding Defendants' activities, would make it difficult or impossible for individual Class members 13 to redress the wrongs done to them, while an important public interest will be served by addressing 14 the matter as a class action. The cost to the court system of adjudication of such individualized 15 litigation would be substantial. The trial and litigation of Plaintiff's claims will be manageable. 16 17 18 19 COUNT I Violations of the Credit Card Accountability Responsibility and Disclosure Act and Electronic Funds Transfer Act, 15 U.S.C. §1693 et seq., on Behalf of Plaintiff and All Class Members Against All Defendants 44. Plaintiff repeats and re-alleges each and every allegation contained above as if set

20 forth herein. 21 45. The CARD Act, which amends the EFTA, prohibits the sale or issuance of gift

22 certificates that feature and are subject to expiration dates. 23 46. Groupon, Nordstrom and members of the Defendant Retail Class sold and issued

24 and/or agreed to sell and issue "groupons," which are "gift certificates" as defined under 15 U.S.C. 25 §1693l-1(a)(2)(B), as "groupons" constitute promises that are: (a) redeemable at a single merchant or 26 an affiliated group of merchants; (b) issued in a specified amount that may not be increased or 27 reloaded; (c) purchased on a prepaid basis in exchange for payment; and (d) honored upon 28 presentation by such single merchant or affiliated group of merchants for goods or services.
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47.

At all relevant times, "Groupon" gift certificates were sold and issued to consumers

2 through electronic fund transfer systems established, facilitated and monitored by Groupon. 3 48. "Groupon" gift certificates are not exclusively issued in paper form, as Groupon

4 provides an e-mail link to consumers to download and print such gift certificates. Moreover, 5 consumers may download "groupon" gift certificates to their mobile phones through an application 6 available on Groupon's website. 7 49. "Groupon" gift certificates are marketed and sold to the general public and are not

8 issued as part of any loyalty, award, or promotional program. 9 50. Groupon, Nordstrom and members of the Defendant Retail Class violated the CARD

10 Act and EFTA by selling and issuing and/or agreeing to sell and issue "groupon" gift certificates 11 with expiration dates, which is plainly prohibited under §1693l-1(a)(2)(B) and §1693l-1(c)(1). 12 51. As a direct and proximate result of Defendants' unlawful acts and conduct, Plaintiff

13 and Class members were deprived of the use of their money that was charged and collected by 14 Defendants through the sale of "groupon" gift certificates with illegal expiration dates. 15 52. Pursuant to 15 U.S.C. §1693m, Plaintiff, on behalf of himself and the Class, seeks a

16 Court order for actual and statutory damages to be determined by the court, injunctive relief, as well 17 as reasonable attorneys' fees and the cost of this action. 18 19 20 21 53. COUNT II Violations of California Business & Professions Code §17200 et seq., on Behalf of Plaintiff and Class Members Who Reside in California Against All Defendants Plaintiff repeats and re-alleges each and every allegation contained above as if set

22 forth herein. 23 54. Section 17200 of the California Business & Professions Code ("Unfair Competition

24 Law" or "UCL") prohibits any "unlawful," "unfair" and "fraudulent" business practice. 25 55. Section 17200 specifically prohibits any "unlawful . . . business act or practice."

26 Defendants have violated §17200's prohibition against engaging in an unlawful act or practice by, 27 inter alia, selling and issuing and/or agreeing to sell and issue "groupon" gift certificates that feature 28 and are subject to expiration dates that are prohibited under both federal and California state laws.
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56.

Defendants' ongoing sale and issuance of gift certificates with expiration dates

2 violates the CARD Act and EFTA, 15 U.S.C. §1693 et seq., as discussed above. 3 57. Defendants' conduct also violates California's gift certificate laws, Cal. Civ. Code

4 §1749.5, and the CLRA, §1750 et seq., as discussed below. Plaintiff and Class members reserve 5 their right to allege other violations of law which constitute other unlawful business acts or practices, 6 as further investigation and discovery warrants. Such conduct is ongoing and continues to this date. 7 58. Section 17200 also prohibits any "unfair . . .business act or practice." As described

8 in the preceding paragraphs, Defendants engaged in the unfair business practice of selling and 9 issuing "groupon" gift certificates with illegal and deceptive expiration dates. 10 59. Groupon, with the approval and agreement of its retail business partners, including

11 Nordstrom, imposed other unfair conditions on its "groupon" gift certificates, including forcing 12 consumers to redeem the gift certificates in the course of a single transaction and not providing for 13 the exchange of any unused portion of the gift certificates for their cash value. Defendants also 14 unfairly limited consumers from using more than one "groupon" gift certificate during each visit to 15 the retail business offering the particular product or service. 16 60. Defendants' business practices, as detailed above, are unethical, oppressive and

17 unscrupulous, and they violate fundamental policies of this State. Further, any justifications for 18 Defendants' wrongful conduct are outweighed by the adverse effects of such conduct. Thus, 19 Defendants engaged in unfair business practices prohibited by California Business & Professions 20 Code §17200 et seq. 21 61. Section 17200 also prohibits any "fraudulent business act or practice." Defendants

22 violated this prong of the UCL by disseminating and/or agreeing to disseminate, through Groupon's 23 website and other promotional channels, misleading and partial statements about "groupon" gift 24 certificates that have a tendency to mislead the public. Further, Defendants violated this prong of the 25 UCL by omitting material information about "groupon" gift certificates with the intent to induce 26 reliance by consumers to purchase such gift certificates. Defendants' claims, nondisclosures and 27 misleading statements concerning "groupon" gift certificates, as more fully set forth above, were 28
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1 false, misleading and/or likely to deceive the consuming public within the meaning of California 2 Business and Professions Code §17200. 3 62. Section 17200 also prohibits any "unfair, deceptive, untrue or misleading

4 advertising." For the reasons set forth above, Defendants engaged in unfair, deceptive, untrue and 5 misleading advertising in violation of California Business & Professions Code §17200. 6 63. Defendants' conduct caused and continues to cause substantial injury to Plaintiff and

7 other Class members. Plaintiff has suffered injury in fact and lost money as a result of Defendants' 8 unfair conduct. 9 64. Additionally, pursuant to California Business & Professions Code §17203, Plaintiff

10 seeks an order requiring Defendants to immediately cease such acts of unlawful, unfair and 11 fraudulent business practices and requiring Defendants to return the full amount of money 12 improperly collected to all those who have paid them. 13 14 15 16 65. COUNT III False and Misleading Advertising in Violation of California Business & Professions Code §17500 et seq., on Behalf of Plaintiff and Class Members Who Reside in California Against All Defendants Plaintiff repeats and re-alleges each and every allegation contained above as if set

17 forth herein. 18 66. California Business & Professions Code §17500 et seq. prohibits various deceptive

19 practices in connection with the dissemination in any manner of representations which are likely to 20 deceive members of the public to purchase products and services such as the "groupon" gift 21 certificates offered by Defendants. 22 67. Defendants' acts and practices as described herein have deceived and/or are likely to

23 deceive Plaintiff and Class members. Defendants use Groupon's website and targeted "Daily Deal" 24 promotions, along with other social media, such as Facebook and Twitter, to extensively market and 25 advertise the gift certificates with misleading and illegal expiration dates and other deceptive terms 26 to consumers. 27 68. By their actions, Defendants have been and are disseminating uniform advertising

28 concerning "groupon" gift certificates, which by its nature is unfair, deceptive, untrue, or misleading
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1 within the meaning of California Business & Professions Code §17500 et seq. Such advertisements 2 are likely to deceive, and continue to deceive, the consuming public for the reasons detailed above. 3 69. Defendants intended Plaintiff and Class members to rely upon the advertisements and

4 numerous material misrepresentations as set forth more fully elsewhere in the Complaint. In fact, 5 Plaintiff and Class members relied upon the advertisements and misrepresentations to their 6 detriment. 7 70. The above described false, misleading, deceptive advertising Defendants

8 disseminated continues to have a likelihood to deceive in that Defendants have failed to disclose the 9 true and actual limitations of their gift certificates. Defendants have failed to instigate a public 10 information campaign to alert consumers of these limitations, which continues to create a misleading 11 perception of the efficacy of their gift certificates. 12 13 14 15 71. COUNT IV Violations of the Consumer Legal Remedies Act, California Civil Code §1750 et seq., on Behalf of Plaintiff and Class Members Who Reside in California Against All Defendants Plaintiff repeats and re-alleges each and every allegation contained above as if set

16 forth herein. 17 72. The California Consumers Legal Remedies Act, Cal. Civ. Code §1750 et seq.

18 provides protection for California consumers against unfair, deceptive and unlawful practices, and 19 unconscionable commercial practices in connection with the sale of any goods or services. 20 73. Plaintiff and the Class are "consumers" as defined by Cal. Civ. Code §1761(d). The

21 "groupon" gift certificates sold and issued by Groupon, Nordstrom and members of the Defendant 22 Retail Class constitute "goods" and "services" as defined by Cal. Civ. Code §1761(a) and (b). 23 74. Defendants' ongoing placement of illegal expiration dates and imposition of other

24 deceptive sales terms on "groupon" gift certificates violate the following subsections of Cal. Civ. 25 Code §1770(a) in these respects: 26 27 28 (5) Defendants' acts and practices constitute misrepresentations that "groupon" gift certificates have characteristics, benefits or uses which they do not have;
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 75.

(7)

Defendants misrepresented that "groupon" gift certificates are of a particular standard, quality and/or grade, when they are of another;

(9)

Defendants' acts and practices constitute the advertisement of goods, without the intent to sell them as advertised;

(14)

Defendants' acts and practices fail to represent that the transaction involving "groupon" gift certificates confers or involves obligations that are prohibited by law, particularly the imposition of illegal expiration dates and other onerous sales terms;

(16)

Defendants' acts and practices constitute representations that "groupon" gift certificates have been supplied in accordance with previous representations when they have not; and

(19)

Defendants inserted unconscionable provisions in the contract for the purchase of gift certificates, specifically illegal expiration dates and other onerous, one-sided restrictions as to the gift certificates' use and redemption.

By reason of the foregoing, Plaintiff and the Class haven been irreparably harmed,

17 entitling them to injunctive relief, disgorgement and restitution. 18 76. Pursuant to §1782 of the CLRA, Plaintiff notified Defendants in writing of the

19 particular violations of §1770 of the CLRA and demanded Defendants rectify the actions described 20 above by providing complete monetary relief, agreeing to be bound by their legal obligations and to 21 give notice to all affected customers of their intent to do so. Plaintiff sent this notice by certified 22 mail, return receipt requested, to Defendants' principal place of business. 23 77. If Defendants fail to adequately respond to Plaintiff's demand within 30 days of the

24 letter pursuant to §1782 of the CLRA, Plaintiff will amend this claim to add additional claims for 25 relief, including claims for compensatory and exemplary damages. Plaintiff is already entitled to the 26 relief set forth above, along with costs, attorneys' fees and any other relief which the Court deems 27 proper. 28
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1 2 3 78. 4 forth herein. 5 79. 6 Plaintiff and the Class members. 7 80. 8 9 conditions. 10 81. 11 12

COUNT V Unjust Enrichment on Behalf of Plaintiff and All Class Members Against All Defendants Plaintiff repeats and re-alleges each and every allegation contained above as if set

Defendants have received, and continue to receive, a benefit at the expense of

Defendants knowingly and/or recklessly sold and issued or agreed to sell and issue

"groupon" gift certificates with illegal expiration dates, as well with other deceptive terms and

As a direct and proximate result of Defendants' unlawful acts and conduct, Plaintiff

and Class members were deprived of the use of their money that was unlawfully charged and collected by Defendants, and are therefore entitled to reimbursement of any money unjustly paid to 13 Defendants in connection with the sale of "groupon" gift certificates. 14 PRAYER FOR RELIEF 15 Plaintiff, individually, and on behalf of the Class, prays for judgment and relief against 16 Defendants as follows: 17 A. 18 Civil Procedure on behalf of the proposed classes described herein and appointing Plaintiff to serve 19 as class representative and Plaintiff's counsel Robbins Geller Rudman & Dowd LLP as Lead 20 Counsel for the Class; 21 B. 22 sell and issue "groupon" gift certificates and pursue the above policies, acts and practices related to 23 the sale and issuance of such gift certificates; 24 C. 25 advertising campaign in order to remedy their wrongful and illegal conduct; 26 D. 27 Class wrongfully acquired by Defendants' wrongful and illegal conduct; 28
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For an order declaring this a class action pursuant to Rule 23 of the Federal Rules of

For an order enjoining Defendants and the Defendant Retail Class from continuing to

For an order requiring Defendants and the Defendant Retail Class to fund a corrective

For an order awarding restitution of the monies Defendants and the Defendant Retail

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1

E.

For an order requiring disgorgement of monies wrongfully obtained as a result of

2 Defendants and the Defendant Retail Class' wrongful and illegal conduct; 3 F. For compensatory and punitive damages, including actual and statutory damages,

4 arising from Defendants' and the Defendant Retail Class' wrongful and illegal conduct; 5 G. For an award of reasonable attorneys' fees and all costs and expenses incurred in the

6 course of prosecuting this action; 7 8 9 10 H. I. For pre-judgment and post-judgment interest at the legal rate; and For such other and further relief as the Court deems just and proper. JURY DEMAND Plaintiff demands a trial by jury on all issues so triable. ROBBINS GELLER RUDMAN & DOWD LLP JOHN J. STOIA, JR. RACHEL L. JENSEN PHONG L. TRAN

11 DATED: January 21, 2011 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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s/ Rachel L. Jensen RACHEL L. JENSEN 655 West Broadway, Suite 1900 San Diego, CA 92101 Telephone: [phone] (fax) Attorneys for Plaintiff

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JS 44 Reverse (Rev. 12/07)

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INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44
Authority For Civil Cover Sheet
The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. (a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. (b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" is the location of the tract of land involved.) (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section "(see attachment)". II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.C.P., which requires that jurisdictions be shown in pleadings. Place an "X" in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 and 1348. Suits by agencies and officers of the United States are included here. United States defendant. (2) When the plaintiff is suing the United States, its officers or agencies, place an "X" in this box. Federal question. (3) This refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (1) Cases which originate in the United States district courts. Removed from State Court. (2) Proceedings initiated in state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the petition for removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. Reinstated or Reopened. (4) Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. Transferred from Another District. (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. Multidistrict Litigation. (6) Check this box when a multidistrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Appeal to District Judge from Magistrate Judgment. (7) Check this box for an appeal from a magistrate judge's decision. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service VII. Requested in Complaint. Class Action. Place an "X" in this box if you are filing a class action under Rule 23, F.R.Cv.P. Demand. In this space enter the dollar amount (in thousands of dollars) being demanded or indicate other demand such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS 44 is used to reference related pending cases if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. Date and Attorney Signature. Date and sign the civil cover sheet.

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U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:11-cv-00132-DMS -POR

Ferreira v. Groupon, Inc. et al Assigned to: Judge Dana M. Sabraw Referred to: Magistrate Judge Louisa S Porter Cause: 28:1331 Fed. Question Plaintiff Anthony Ferreira on Behalf of Himself and All Others Similarly Situated and the General Public

Date Filed: 01/21/2011 Jury Demand: Plaintiff Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question represented by Phong Le Tran Robbins Geller Rudman & Dowd LLP 655 West Broadway Suite 1900 San Diego, CA 92101 [phone] Email: [e-mail] LEAD ATTORNEY ATTORNEY TO BE NOTICED Rachel L Jensen Robbins Gellar Rudman & Dowd LLP 655 West Broadway Suite 1900 San Diego, CA 92101 [phone] Fax: [phone] Email: [e-mail] LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Groupon, Inc. Individually and on Behalf of All Similarly Situated Entities represented by Christopher Munro Young DLA Piper US 401 B Street Suite 1700 San Diego, CA 92101-4297 [phone] Fax: [phone] Email: [e-mail] LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Nordstrom, Inc. represented by Christopher Munro Young

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Individually and on Behalf of All Similarly Situated Entities Defendant DOES 1 through 100, inclusive Date Filed 01/21/2011 # 1 Docket Text

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

COMPLAINT with Jury Demand against DOES, Groupon, Inc., Nordstrom, Inc. ( Filing fee $ 350 receipt number 0974-3235682.), filed by Anthony Ferreira. The new case number is 3:11-cv-132-DMS-POR. Judge Dana M. Sabraw and Magistrate Judge Louisa S Porter are assigned to the case. (Jensen, Rachel)(yeb) (cap). (Entered: 01/24/2011)

01/21/2011 01/24/2011

2 3

NOTICE of Party With Financial Interest by Anthony Ferreira (yeb) (cap). (Entered: 01/24/2011) Summons Issued. Counsel receiving this notice electronically should print this summons and serve it in accordance with Rule 4, Fed.R.Civ.P and LR 4.1. (yeb) (cap). (Entered: 01/24/2011) NOTICE of Appearance by Phong Le Tran on behalf of Anthony Ferreira (Tran, Phong) (lao). (Entered: 01/24/2011) SUMMONS Returned Executed by Anthony Ferreira. Groupon, Inc. served on 1/24/2011, answer due 2/14/2011. (Tran, Phong) (lao). (Entered: 02/01/2011) SUMMONS Returned Executed by Anthony Ferreira. Nordstrom, Inc. served on 1/24/2011, answer due 2/14/2011. (Tran, Phong) (lao). (Entered: 02/01/2011) Joint MOTION for Extension of Time to File Answer /Respond to Complaint by Groupon, Inc., Nordstrom, Inc. (Young, Christopher) (lao). (Entered: 02/14/2011) ORDER on 7 Plaintiff's and Defendants' Joint Motion for an Extension of Time for Defendants Groupon, Inc. and Nordstrom, Inc. to respond to the Complaint. Response due by 3/14/2011. Signed by Judge Dana M. Sabraw on 2/16/11. (lao) (jcj). (Entered: 02/16/2011)

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PACER Service Center
Transaction Receipt
03/10/2011 15:57:29 PACER Login: rg3396 Client Code: 110011-00001/30890

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Description: Billable Pages:

Docket Report 2

Search Criteria: Cost:

3:11-cv-00132-DMS POR 0.16

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