Parziale v. HP, Inc.

• Court: District Court, N.D. California
• Decided: April 24, 2020
• Docket: 5:19-cv-05363
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 JOHN PARZIALE, 8 Case No. 5:19-cv-05363-EJD Plaintiff, 9 ORDER GRANTING IN PART AND v. DENYING IN PART DEFENDANT’S 10 MOTION TO DISMISS AND/OR HP, INC, STRIKE Defendant. Re: Dkt. No. 25 g i

13 This putative nation-wide class action suit arises out of Defendant HP Inc.’s (“HP” or

14 || “Defendant”) implementation of a remote firmware update that allegedly incapacitated Plaintiff

3 15 || John Parziale’s (“Plaintiff”) HP printers and thirty-three other models of HP printers by preventing QO 16 || the use of certain non-HP ink cartridges in those printers.

17 On November 13, 2019, Plaintiff filed the First Amended Class Action Complaint (Dkt.

18 || No. 19, “FAC”). HP now moves to dismiss the FAC pursuant to Rules 8(a)(2), 9(b), 12(b)(6), and 19 12(f) of the Federal Rules of Civil Procedure (Dkt. No. 25, “Motion”). The Court took the matter 20 || under submission for decision without oral argument pursuant to Civil Local Rule 7-1(b). For the 21 || reasons below, Defendant’s motion is GRANTED in part and DENIED in part. 22 I. Background 23 On or around September 12, 2017, Plaintiff purchased an HP Officejet Pro 7740 printer 24 || from an Office Depot in Jacksonville, Florida. FAC § 22. On June 6, 2018, Plaintiff purchased 25 || another HP Officejet Pro 7740 printer from Amazon.com. /d. at § 23. When shopping for a 26 || printer, it was important to Plaintiff that the printer be compatible with third-party ink cartridges 27 Case No.: 5:19-cv-05363-EJD 28 |} ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 and refilled HP ink cartridges because these non-HP cartridges were less expensive than their HP 2 || brand counterparts. /d. at 25-27. Indeed, Plaintiff repeatedly alleges that he would not have 3 || purchased the printers had he known that he would be unable to use non-HP cartridges with the 4 || printer. See, e.g., id. at Jf 27, 33, 58, 100. Plaintiff did not see any representations by HP that he 5 || would only be able to use HP brand cartridges, so Plaintiff bought the HP printers. /d. at □□ 25-27. 6 || The packaging on the printers Plaintiff bought included the statement: “Please use genuine HP ink 7 || cartridges for best results.” Jd. at ¥ 34. 8 Though Plaintiff did not know it at the time of purchase, certain HP printers are configured 9 || to perform automatic updates to the software embedded in the device—known as firmware— 10 || without user intervention. /d. at § 35. This means that HP can remotely update the firmware in its 11 printers without users’ knowledge. /bid. HP’s online support page for the Officejet Pro 7740 (the 12 || “Support Page’) contains a brief description of this remote update ability, which HP calls 13 “dynamic security.’ Jd. at §37. The Support Page states: 14 Reminder: Dynamic security enabled printer. This Firmware 3 15 includes dynamic security measures, which may prevent supplies 16 with non-HP chips or circuitry from working now or in the future.

1g | —————_ 19 ' HP’s motion to dismiss attaches a printout of the Support Page as an exhibit. Samplin Decl., 29 || Dkt. No. 26-1, Ex. A. While the Court generally does not consider materials outside of the 2] complaint on a motion to dismiss, the Court may consider “documents incorporated into the 22 || complaint by reference.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, (2007). 23 || A document may properly be incorporated by reference where a party “refers extensively to the 24 || document.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018), cert. 25 || denied sub nom. Hagan v. Khoja, 139 S. Ct. 2615 (2019) (citation omitted). Because the 26 || allegations in the FAC quote from and rely on the Support Page, the Court finds that the Support 27 || Page was incorporated by reference, and finds it appropriate to consider Exhibit A. Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 Ibid. The Support Page further states: “HP cannot guarantee the quality or reliability of non-HP 2 || cartridges.” Jd. at ¥ 38. 3 On or around April 12, 2019, HP used dynamic security technology to implement a 4 || firmware update that modified the firmware on many models of HP printers, including □□□□□□□□□□□ 5 || printers, without alerting users.” Jd. at 931. The update caused affected printers to cease 6 || functioning with certain third-party and refilled cartridges. /d. at 32. HP printers and 7 || compatible ink cartridges contain chips that allow the printer and the cartridge to communicate 8 || with each other. Jd. at § 74, p. 16° The printer chip contains a master key code and the cartridge 9 || chip contains a base key code that allows the printer to authenticate that the cartridge is 10 || compatible. /bid. The April firmware update changed the communication protocol between 11 printer chips and cartridge chips so that certain varieties of non-HP cartridge chips were no longer 12 || able to communicate with the HP printers. /d. at § 82, p. 18. Because the firmware update 13 || blocked these non-HP cartridge chips, any cartridge with such a chip no longer functioned with an 14 || HP printer. /bid. 3 15 As aresult of the update, Plaintiffs printer ceased working with the refilled cartridges that 16 || were installed in his printers at the time. /d. at { 40. When Plaintiff attempted to print, he 5 17 || received a series of error messages stating that he needed to replace empty cartridges and that S 18 || there was a “cartridge problem.” J/d. at 42-44. He replaced the refilled cartridges with other 19 || third-party cartridges and received another error message directing him to remove and reinstall the 20

22 * Plaintiff alleges that the firmware update affected all HP Officejet Pro 7740 model printers as 23 || well as an extensive list of other printer models (the “Class Printers”). See FAC § 67 for a 24 || complete list of Class Printers. 25 * The FAC’s paragraphs are incorrectly numbered beginning after paragraph 90 on page 19. There 26 || are also two paragraphs numbered 59, and two paragraphs numbered 67. The Court refers to the 27 || paragraph number listed in the FAC with a page number where necessary for clarity. Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 cartridge to make sure it was correctly installed. /d. at § 45. Plaintiff was not able to use his 2 || printers unless and until he bought HP brand cartridges. /d. at ¢ 32. At the time of the firmware 3 || update, Plaintiff had purchased and was in possession of at least nine refilled cartridges, which no 4 || longer functioned with his printer following the update. /d. at □ 33. As of the date the FAC was 5 filed, Plaintiff's printers still did not work unless they were loaded with original HP cartridges. □□□ 6 || at 83, p. 18. Plaintiff alleges that this limited functionality devalued his printers. /d. at ¥ 32. 7 Plaintiff alleges that HP has engaged in this type of conduct before. /d. at ¥ 84, p. 18. For 8 || example, firmware updates in March 2016 and September 2017 similarly altered the 9 || communication protocol between HP printers and certain non-HP cartridges. /bid. One prior 10 || remote firmware update gave rise to a class action lawsuit filed in this Court involving very 11 similar claims against HP. See San Miguel v. HP Inc., 317 F. Supp. 3d 1075 (N.D. Cal. 2018). In 12 || San Miguel, this Court granted in part and denied in part HP’s motion to dismiss the plaintiffs’ 13 claims. Jd. Following the Court’s order on the motion to dismiss, the parties reached a settlement 14 || by which HP agreed not to reinstall or reactivate Dynamic Security in the printers at issue in that 3 15 case. FAC § 70, p. 20. While the parties agree that HP has not violated the settlement agreement, a 16 || Plaintiff alleges that HP has continued to engage in a pattern of pushing firmware updates in other 5 17 || printer models, including the Class Printers in this case. /d. at 71-72, p. 20. S 18 Based on the foregoing, Plaintiff seeks to represent “[a]ll United States Citizens who, 19 || between the applicable statute of limitations and the present, purchased or owned one [or] more 20 || Class Printers” (the “Class”) as well as “all persons in Florida who purchased or owned one or 21 more Class Printers” (the “Florida Subclass”). /d. at §.75, p. 21. 22 On behalf of the Florida Subclass, Plaintiff asserts claims for violation of the Florida 23 || Deceptive and Unfair Trade Practices Act (“FDUTPA”) (Claim 1) and the Florida Misleading 24 || Advertisement Law (“FMAL”) (Claim 2). On behalf of the Class, Plaintiff asserts claims for 25 || violations of the Computer Fraud and Abuse Act (“CFAA”) (Claim 3), trespass to chattels (Claim 26 || 4), and tortious interference with contractual relations and/or prospective economic advantage a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 (Claim 5). 2 HP now moves to dismiss all of Plaintiff's claims, asserting that HP is not under any legal 3 duty to make its printers compatible with non-HP ink cartridges. Motion, p. 1. HP reasons that all 4 || of Plaintiffs claims start from the underlying and deficient premise that HP had some duty to 5 || make its printers compatible with non-HP ink cartridges, even those containing cloned security 6 || chips that infringe on HP’s intellectual property. /bid. HP argues that it was under no such legal 7 || obligation, did not make any misleading representations as to the compatibility of non-HP 8 cartridges with its printers, and generally did nothing unlawful. /bid 9 In his Opposition to HP’s Motion (Dkt. No. 29, “Opposition’), Plaintiff represented that he 10 || would voluntarily withdraw his claim for tortious interference with contractual relations. Opp., p. 11 3. Therefore, the Court does not address HP’s arguments for dismissal of Claim 5. 12 ll. Legal Standard 13 Federal Rule of Civil Procedure 12(b)(6) provides that a party may seek dismissal of a suit 14 || for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). The 3 15 complaint “must contain sufficient factual matter, accepted as true, to “state a claim to relief that is a 16 || plausible on its face.”” Ashcroft v. Igbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 5 17 Twombly, 550 U.S. 544, 570 (2007)). When deciding whether to grant a motion to dismiss, the S 18 court “must accept as true all factual allegations in the complaint and draw all reasonable 19 || inferences in favor of the nonmoving party.” Retail Prop. Trust v. United Bhd. of Carpenters & 20 || Joiners of Am., 768 F.3d 938, 945 (9th Cir. 2014) (citation omitted). However, “courts are not 21 bound to accept as true a legal conclusion couched as a factual allegation.” Jgbal, 556 U.S. at 678. 22 || Dismissal “is proper only where there is no cognizable legal theory or an absence of sufficient 23 facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 24 |} 2001). 25 Ill. Discussion 26 a. FDUTPA Claim a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 Plaintiff alleges that HP violated the Florida Deceptive and Unfair Trade Practices Act 2 || (“FDUTPA”). Fla. Stat. §§ 501.201 et seq. FDUTPA prohibits “[u|nfair methods of competition, 3 |} unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any 4 || trade or commerce.” Fla. Stat. § 501.204(1). “A consumer claim for damages under FDUTPA 5 || has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual 6 || damages.” Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. Dist. Ct. App. 2006), review 7 || denied, 962 So.2d 335 (Fla. 2007). “Whether an alleged act or practice is deceptive or unfair may 8 || be decided as a matter of law.” Casey v. Fla. Coastal Sch. of Law, Inc., No. 3:14-cv-1229-J- 9 || 39PDB, 2015 WL 10096084, at *6 (M.D. Fla. Aug. 11, 2015), report and recommendation 10 || adopted, No. 3:14-cv-01229, 2015 WL 10818746 (M.D. Fla. Sept. 29, 2015); see, e.g., P.C. 1] Cellular, Inc. v. Sprint Solutions, Inc., No. 5:14-cv-237-RS-GRJ, 2015 WL 128070, at *5 (N.D. 12 || Fla. Jan. 8, 2015); Zambrano v. Indian Creek Holding, LLC, No. 09-cv-20453, 2009 WL 2365842, 13 |} at *1 (S_D. Fla. July 30, 2009). 14 i. Rule 9(b) 3 15 Consumer-protection claims that sound in fraud are subject to the heightened pleading a 16 || requirements of Federal Rule of Civil Procedure 9(b). Vess v. Ciba-Geigy Corp. USA, 317 F.3d 5 17 1097, 1102 (9th Cir. 2003); San Miguel, 317 F. Supp. 3d at 1084. Rule 9(b) requires that “a party S 18 || must state with particularity the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). The 19 || circumstances constituting the fraud must be “specific enough to give defendants notice of the 20 || particular misconduct which is alleged to constitute the fraud charged so that they can defend 21 against the charge and not just deny that they have done anything wrong.” Semegen v. Weidner, 22 || 780 F.2d 727, 731 (9th Cir. 1985). Therefore, a party alleging fraud must set forth “the who, 23 what, when, where, and how” of the misconduct. Vess, 317 F.3d at 1106 (quoting Cooper v. 24 || Pickett, 137 F.3d 616, 627 (9th Cir. 1997)). 25 Federal district courts are split as to whether FDUTPA claims are subject to the heightened 26 || pleading requirements of Rule 9(b). Compare Costa v. Kerzner Int’l Resorts, Inc., No. 11-cv- a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 60663, 2011 WL 2519244, at *2 (S.D. Fla. June 23, 2011) (finding Rule 9(b) does not apply) with 2 Llado-Carreno v. Guidant Corp., No. 09-20971, 2011 WL 705403, at *5 (S.D. Fla. Feb. 22, 2011) 3 (finding that Rule 9(b) does apply). “[W]here the gravamen of the [FDUTPA] claim sounds in 4 || fraud” the heightened pleading standard of Rule 9(b) applies. State Farm Mut. Auto. Ins. Co. v. 5 || Performance Orthopaedics & Neurosurgery, LLC, 278 F. Supp. 3d 1307, 1327-28 (S.D. Fla. 6 || 2017) (applying Rule 9(b) requirements to an FDUTPA claim where the “gravamen” of the 7 || complaint was that Defendants engaged in a “fraudulent scheme” to “grossly inflate[ |” the value 8 || of their patients’ personal injury claims so that plaintiff-insurer would “pay significant settlement 9 || amounts based upon false information.”). 10 Courts have recognized, however, that “FDUTPA was enacted to provide remedies for 1] conduct outside the reach of traditional common law torts like fraud, and thus plaintiffs need not 12 || prove the elements of fraud to sustain an action under FDUTPA.” See, e.g., State of Fla., Office of 13 || Atty. Gen., Dept. of Legal Affairs v. Tenet Healthcare Corp., 420 F. Supp. 2d 1288, 1310 (S.D. 14 || Fla. 2005) (“A deceptive or unfair trade practice constitutes a somewhat unique tortious act 3 15 || because, although it is similar to a claim of fraud, it is different in that, unlike fraud, a party a 16 || asserting a deceptive trade practice claim need not show actual reliance on the representation or 5 17 || omission at issue.”) (citation omitted); Davis v. Powertel, Inc., 776 So. 2d 971, 974 (Fla. 1st DCA 18 || 2000) (“The plaintiff need not prove the elements of fraud to sustain an action under the statute.”’). 19 HP argues that Plaintiff's FDUTPA claim sounds in fraud because Plaintiff characterizes 20 || HP’s alleged omissions with respect to the firmware update as “unfair and/or fraudulent” and 21 constituting a “common scheme” undertaken to “mislead” and “deceive.” See FAC 56, 87, 90. 22 || Atits core, Plaintiff's FDUTPA claim is grounded in HP’s allegedly misleading failure to disclose 23 || certain information to consumers in the course of business. The Court finds that despite the 24 || FAC’s few references to fraudulent conduct, the “gravamen” of Plaintiff's FDUTPA claim does 25 not sound in fraud. See Harris v. Nordyne, LLC, No. 14-cv-21884, 2014 WL 12516076, at *5 26 || (S.D. Fla. Nov. 14, 2014) (“even where a FDUTPA claim includes allegations which implicate a Case No.: 5:19-cv-05363-EJD 28 |} ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE _

1 fraudulent conduct, it need not meet the heightened pleading requirements of Rule 9(b)”). 2 || Therefore, Rule 9(b) pleading requirements do not apply to Plaintiff's FDUTPA claim. See /d. at 3 *4 (holding that Rule 9(b) did not apply where FDUTPA claim was “grounded in an alleged 4 || deceptive omission by failure to disclose,” reasoning that the heightened pleading requirement is 5 || not necessary to provide defendant adequate notice of an alleged omission). 6 ii. Deceptive Act 7 For purposes of a FDUTPA claim, deception occurs where there is a “representation, 8 || omission, or practice that is likely to mislead the consumer acting reasonably in the circumstances, 9 || to the consumer’s detriment.” Westgate Resorts, Ltd. v. Sussman, 387 F. Supp. 3d 1318, 1363 10 || (M.D. Fla. 2019) (citing PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So. 2d 773, 777 (Fla. 2003)). 11 This deception may be accomplished by innuendo and through omissions, rather than outright 12 || false statements. State Farm Mutual Automobile Insurance Company v. Performance 13 Orthopaedics & Neurosurgery, LLC, 278 F.Supp.3d at 1327. To satisfy this element, “the 14 || plaintiff must show that the alleged practice was likely to deceive a consumer acting reasonably in 3 15 the same circumstances.” Carriuolo v. Gen. Motors Co., 823 F.3d 977, 983-84 (11th Cir. 2016) a 16 || (internal quotations and citations omitted). 5 17 Plaintiff argues that HP failed to disclose its “ability to lock out third-party cartridges or S 18 || refilled cartridges with its firmware updates,” (FAC § 39) and that this omission constitutes a 19 || deceptive act under FDUTPA. /d. at § 92. Plaintiff concedes that his claims are “not premised on 20 || affirmative misrepresentations, except insofar as Defendant made misleading statements which 21 gave rise to a duty to disclose its deceptive conduct.” Opp. p. 21, n. 8. Plaintiff alleges that three 22 || statements in particular gave rise to HP’s duty to disclose its ability to prevent the use of non-HP 23 cartridges: (1) a statement on the packaging of the printers Plaintiff purchased, which directed 24 || customers to “[p]lease use genuine HP ink cartridges for best results” (FAC § 34); (2) an 25 unspecific representation that “made Plaintiff believe that he could use 952-, 952XL, 953-, and 26 || 953XL ink cartridges, including third party ink cartridges” (/d. at § 26); and (3) a statement on the a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 Support Page that “HP cannot guarantee the quality or reliability of non-HP cartridges” (FAC J 2 || 38).* Plaintiff argues that these statements, when viewed together, misleadingly imply that 3 || consumers would be able to use non-HP cartridges with their HP printers in perpetuity, and that 4 || HP therefore had a duty to disclose the fact that a remote firmware update could render non-HP 5 || cartridges incompatible. 6 The Court agrees that the statement that HP ink produces “best results” implies that it is 7 || possible to use non-HP ink cartridges with the printer. The Court does not agree, however, that 8 || this implication is misleading to a reasonable customer. At the time Plaintiff purchased the 9 || printers, it was possible to use non-HP cartridges. /d. at § 29. The statement on the box does not, 10 || onits face, imply that the printer is compatible with a// non-HP cartridges, or that it would always 11 be compatible with such cartridges. The statement, therefore, does not create a duty for HP to 2 disabuse consumers of any such misconception. 13 The Support Page stated that “HP cannot guarantee the quality or reliability of non-HP 14 || cartridges.” /d. at § 38. Like the statement on the box, this statement implies that non-HP 3 15 cartridges may be compatible with the printer; however, it does not make any representation that a 16 || all non-HP cartridges will work or that those cartridges will continue to work in the future. In 5 17 || fact, it expressly warns that non-HP cartridges may not be reliable. In light of this express 18 || warning, no reasonable customer would understand HP’s statement to mean that the printer would 19 20 2] “ While Plaintiff’s allegations regarding HP’s omissions focus on the information available at the 22 || “point of sale” (FAC {ff 34, 92, 106), he relies on HP’s statements on the Support Page to show 23 || that HP misled consumers into believing that non-HP cartridges were compatible. /d. at □□ 37-40; 24 || Opp. p. 6, 23. Because Plaintiff alleges that the Support Page misled him regarding his ability to 25 || use non-HP cartridges, he must also acknowledge that information on the Support Page was 26 || available to him prior to purchase. Thus, the Court considers the information on the Support Page 27 || to be information available to Plaintiff prior to and at the time of purchase. Case No.: 5:19-cv-05363-EJD 28 |} ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 || remain compatible with non-HP cartridges. 2 HP’s alleged statements regarding “generic ink cartridge number[s]” are similarly not 3 misleading. See Opp., p. 23. Plaintiff alleges that that “all of the printers previously purchase by 4 || Plaintiff allowed the use of third party ink cartridges,” that “it was common industry practice” to 5 allow the use of such cartridges. FAC § 26. He then alleges that “[t]hese representations and 6 omissions made Plaintiff believe that he could use 952-, 952XL, 953-, and 953 XL- ink cartridges, 7 {|| including third party ink cartridges and refilled HP ink cartridges.” /bid. Plaintiff fails to identify 8 || what those “representations and omissions” were that caused him to believe that he could use 9 || particular generic cartridges. In the absence of any allegedly misleading representation, HP was 10 || under no duty to correct Plaintiff’s misconception based on his knowledge of “industry practice” 11 and his prior purchases. See San Miguel, 317 F. Supp. 3d at 1089 (finding no misrepresentation 12 || where HP included specific parts numbers on the printer box in the absence of any statement that 13 || would lead a reasonable consumer to believe the numbers were for generic parts). 14 Because none of the allegedly misleading statements gave rise to a duty to disclose 3 15 additional information, the Court finds that Plaintiff's allegations as to HP’s omissions are a 16 || insufficient to state a claim under FDUTPA. Jn re NJOY, Inc. Consumer Class Action Litig., No. 5 17 14-cv-00428-MMM, 2015 WL 12732461, at *14 (C.D. Cal. May 27, 2015) (“Where an FDUTPA S 18 claim is based on an omission, and the defendant had no duty to disclose the purportedly withheld 19 || information, the claim fails as a matter of law.”) (citing Virgilio v. Ryland Group, Inc., 680 F.3d 20 1329, 1338 (11th Cir. 2012)). 21 Moreover, the information that Plaintiff argues HP should have disclosed was in large part 22 || disclosed on the Support Page. Plaintiff alleges that HP misled him by not telling him “at the time 23 || of purchase that [his] HP Printer would at some time in the future reject the less expensive third 24 || party replacement ink cartridges.” FAC § 10. However, the Support Page expressly stated that the 25 || printer’s firmware “includes dynamic security measures, which may prevent supplies with non-HP 26 || chips or circuitry from working now or in the future.” Jd. at 937. While HP did not disclose a a Case No.: 5:19-cv-05363-EJD 28 |} ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 plan to distribute the firmware update at issue (and there are no allegations that HP had such a plan 2 || at the time of Plaintiffs purchases), the warning on the Support Page is sufficient to counter any 3 || potential misconception about the use of non-HP cartridges. Casey, 2015 WL 10096084, at *13 4 || (“‘FDUTPA does not require companies to be wholly transparent . . . so long as the publication is 5 || not probably deceptive and likely to cause injury to a reasonably relying consumer.”). It defies 6 |} common sense to suggest that a reasonable customer would understand HP’s assertion that non- 7 || HP cartridges may be prevented from working in the future to mean that non-HP cartridges would 8 continue to work in perpetuity. See Beale v. Biomet, Inc., 492 F. Supp. 2d 1360, 1374 (S.D. Fla. 9 || 2007) (rejecting FDUTPA claim where “the literature makes clear those very things that Plaintiffs 10 || complain were deceiving.”). 1] The Court, therefore, finds that Plaintiff has failed to allege any representation or omission 12 || likely to deceive a reasonable customer sufficient to state a claim under FDUTPA. 13 iii. Unfair Practice 14 Plaintiff next argues that HP’s conduct violates FDUTPA because it constitutes an unfair 3 15 || business practice. Fla. Stat. § 501.204. An act or practice is “unfair” for the purposes of a 16 || FDUTPA if it causes consumer injury that is (1) substantial, (2) not outweighed by any 5 17 || countervailing benefits to consumers or competition, and (3) one that consumers themselves could S 18 || not have reasonably avoided (the “Section 5 Test”). Porsche Cars N. Am., Inc. v. Diamond, 140 19 So. 3d 1090, 1096 (Fla. Dist. Ct. App. 2014) (adopting the FTC Policy Statement on Unfairness 20 || for the purposes of establishing unfairness under FDUTPA).° “{V]iolations of FDUTPA include 21 22 PO 23 > Although courts applying FDUTPA have often defined an “unfair” act or practice as one that 24 || “offends established public policy and one that is immoral, unethical, oppressive, unscrupulous or 25 substantially injurious to consumers,” see, e.g., PNR, Inc., 842 So.2d at 777, that definition 26 || appears to be outdated, Porsche, 140 So.3d at 1096; Casey, 2015 WL 10096084, at *6. 27 || Regardless, the difference in definition is immaterial to the Court’s analysis here. Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 violations of ‘[t]he standards of unfairness and deception set forth and interpreted by the Federal 2 || Trade Commission or the federal courts.’” Jd. at 1096—97 (quoting Fla. Stat. § 501.203(3)(b)); see 3 Fed. Trade Comm’n vy. Vylah Tec, LLC, No. 17-cv-228-PAM-MRM, 2019 WL 722085, at *6 4 |} (MLD. Fla. Jan. 9, 2019) (stating the requirements for a FDUTPA claim “mirror[] the requirements 5 || of Section 5 of the FTC Act”); Casey, 2015 WL 10096084, at *6 (M.D. Fla. Aug. 11, 2015) 6 |] (same). 7 Plaintiff alleges that HP engaged in the following unfair practices in violation of FDUTPA: 8 * Defendant “misled Purchasers by intentionally omitting highly relevant 9 material information from purchasers at the point of sale regarding future 10 restrictions that HP would place on the use of Class Printers, namely a firmware 11 update that would render incompatible any third party or refill ink cartridges 2 with Class Printers” (FAC § 92); 13 ¢ Defendant “invaded Class Members’ Class Printers without notice or 14 authorization, and substantially decreased the value of the products, after the 3 15 point of sale, by installing permanent firmware updates onto the units that a 16 rendered the units less functional and less valuable than they were prior to that 5 17 time” (/d. at | 93); 18 ¢ Defendant “invaded Class Members’ Class Printers without notice or 19 authorization, and rendered existing third party and refill ink cartridges that 20 Class Members had previously purchased and owned valueless to class 21 members” (/d. at § 94); 22 * Defendant “sold printers which were not advertised to disclose particular 23 features and functions and forced modifications without consumers’ consent” 24 (dd. at § 95); 25 ¢ Defendant “harm[ed]... competition and raise[d] the cost of owning printers 26 amongst consumers generally in the marketplace by artificially restricting free a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 choice with respect to aftermarket products. This is accomplished by forcing 2 existing customers who have sunk a high upfront cost in a printer (a barrier to 3 entry for a consumer who wishes to purchase a competitor printer but is now 4 stuck), and now are restricted to continuing to use that printer and HP brand ink 5 cartridges at an artificially elevated variable cost due to barriers preventing 6 them from altering their otherwise free choice. By tying a fixed base product 7 (printers) to variable products (ink cartridges) in this way, when combined with 8 undisclosed deceptive conduct of altering the base product without 9 authorization, HP has harmed competition and consumers both generally, and 10 specifically” (Ud. at § 96). 1] Plaintiff alleges that this conduct caused him to suffer injury including by rendering his printers 12 unusable (/d. at [9 32, 33, 52, 57, 86, 93, 94, 100, 129, 134), by rendering his replacement 13 cartridges useless (/d. § 33), by forcing him to buy more expensive HP brand replacement ink 14 || cartridges Ud. at J] 32, 50), and by devaluing his printers (/d. at JJ 32, 33, 52, 57, 86, 93, 94, 96, 3 15 100, 129, 134). Accepting these allegations as true, the Court finds that Plaintiff has sufficiently a 16 || alleged a “substantial injury” under the first prong of the Section 5 Test. Porsche, 140 So. 3d at 5 17 1101 (‘In most cases a substantial injury involves monetary harm, as when sellers coerce S 18 consumers into purchasing unwanted goods”) (excerpting the FTC Policy Statement on Unfairness 19 || date Dec. 17, 2980). 20 With respect to the second prong of the Section 5 Test, HP argues that Plaintiff fails to 21 || raise any allegation that his injury is not outweighed by a countervailing benefit to consumers. 22 || Reply, p. 7. Plaintiff maintains that there is no countervailing benefit on the face of the FAC that 23 || justifies HP’s conduct. Opp. p. 18. As HP points out, however, the Support Page, which is 24 || incorporated into the FAC, contains a number of reasons for the firmware updates that are 25 allegedly beneficial to consumers and to competition. See Support Page, Dkt. No. 26-1 (the 26 || “process for authenticating cartridges” is to “protect the quality of [the] customer experience, a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 maintain the integrity of [HP’s] printing systems, and protect [HP’s| intellectual property.”). 2 || Plaintiff raises no allegations to refute these alleged benefits, or to show that they are outweighed 3 || by the injury he suffered. Even accepting the allegations as true and construing them in the light 4 || most favorable to Plaintiff, the Court finds that Plaintiff fails to allege that his injury outweighs 5 any countervailing benefit to consumers. See Kindred Studio Illustration & Design, LLC vy. Elec. 6 Commc’n Tech., LLC, 2018 WL 6985317, at *7 (C.D. Cal. Dec. 3, 2018) (dismissing FTC Section 7 {| 5 claim because conclusory allegation that alleged harm is “not outweighed by countervailing 8 || benefits to consumers or to competition” was insufficient). 9 The Court also finds that Plaintiff fails to allege that he could not have avoided the alleged 10 || injury as required to meet the third prong of the Section 5 Test. An injury is reasonably avoidable 11 if consumers “have reason to anticipate the impending harm and the means to avoid it.” Orkin 12 || Exterm. Co., Inc. v. FTC, 849 F.2d 1354, 1365-66 (11th Cir.1988). As discussed in Part □□□□□□□□ 13 above, the Support Page gave consumers notice that non-HP cartridges may not work with HP 14 || printers in the future. This information is sufficient to allow a reasonable consumer to anticipate 3 15 any impending harm caused by a printer with limited compatibility with non-HP cartridges. a 16 || Consumers had the means to avoid any impending injury, either by buying a different printer in 5 17 || the first instance, or by not buying refilled or third-party cartridges that might be rendered S 18 incompatible in the future. Casey, 2015 WL 10096084, at *15 (finding that consumers could have 19 || reasonably avoided injury caused by misleading representations and omissions where sources 20 || providing accurate information were available to consumers). 21 Plaintiff does not allege facts sufficient to meet the second or third prongs of the Section 5 22 || Test, and is thus unable to state a claim under FDUTPA based on unfair practices. Because the 23 Court finds that Plaintiffs allegations are insufficient to show that the HP’s conduct was deceptive 24 || or unfair, the Court need not consider whether Plaintiff has adequately alleged causation or 25 || damages. Plaintiff's FDUTPA claim (Claim 1) is DISMISSED without prejudice. 26 b. FMAL Claim a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 Plaintiff alleges that HP violated the Florida Misleading Advertisement Law (the 2 || “FMAL”), which generally prohibits misleading advertising. FAC 94 103-11; Fla. Stat. § 3 817.41(1). Specifically, Plaintiff alleges that HP advertised its printers as “compatib[le] with 4 || third-party and refill ink cartridges” and that those advertisements were misleading in light of a 5 future firmware update that rendered the printers incompatible with such cartridges. FAC § 105. 6 In relevant part, the FMAL makes it “unlawful for any person to make or disseminate or 7 || cause to be made or disseminated before the general public of the state, or any portion thereof, any 8 || misleading advertisement.” Fla. Stat. § 817.41(1). “A ‘misleading advertisement’ is defined as 9 || statements made with the purpose of selling property or services ‘which are known, or through the 10 || exercise of reasonable care or investigation could or might have been ascertained, to be untrue or 11 misleading.’” Godelia v. Doe 1, 881 F.3d 1309, 1321 (11th Cir. 2018) (quoting Fla. Stat. § 2 817.40(5). Under the FMAL, Plaintiff must “prove reliance on the alleged misleading advertising, 13 as well as each of the other elements of the common law tort of fraud in the inducement.” Smith v. 14 || Mellon Bank, 957 F.2d 856, 858 (11th Cir. 1992); see also Makaeff v. Trump Univ., LLC, 145 F. 3 15 || Supp. 3d 962, 981-82 (S.D. Cal. 2015). a 16 HP argues that Plaintiff has failed to identify any misleading advertisement, noting that the 5 17 || only advertisement mentioned in the FAC is the statement on the printer packaging that directed S 18 customers to “[p]lease use genuine HP ink cartridges for best results.” Opp., p. 13; FAC § 34. 19 || HP further argues that Plaintiff failed to meet any of the elements of fraudulent inducement, as 20 || required to state a claim under the FMAL. 21 As with his FDUTPA claim, Plaintiff argues that his FMAL claim is based on omissions, 22 || not affirmative representations. Opp. p. 21. The Court finds that the alleged representations and 23 omissions are not “untrue or misleading” under the FMAL for the same reasons that those 24 || representations and omissions are not deceptive or unfair under the FDUTPA, as discussed above. 25 || See Cross v. Point & Pay, LLC, 274 F. Supp. 3d 1289, 1297 (M.D. Fla. 2017) (“The type of 26 || activity proscribed by section 817.41—misleading advertising—is precisely the type of unfair and a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 deceptive trade practice that is prohibited by FDUTPA.”). Because Plaintiff has failed to allege 2 || any misleading advertising, his allegations are insufficient to state a claim under the FMAL and 3 || the Court need not consider whether he adequately alleged the elements of fraudulent inducement. 4 Plaintiff's FMAL claim (Claim 2) is DISMISSED without prejudice. 5 c. CFAA Claim 6 The Computer Fraud and Abuse Act (“CFAA”) is a federal criminal statute that also 7 || authorizes civil actions for any person who suffers damage or loss by reason of a violation of the 8 statute. 18 U.S.C. § 1030(g). “The CFAA prohibits a number of different computer crimes, the 9 || majority of which involve accessing computers without authorization or in excess of authorization, 10 || and then taking specified forbidden actions, ranging from obtaining information to damaging a 11 computer or computer data.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir. 2009) (citing 18 U.S.C. 1030(a)(1)-(7) (2004)). 13 Plaintiff alleges that HP violated Sections 1030(a)(5)(A) through (C), Section 14 1030(a)(2)(C), and Section 1030(a)(6)(A). In relevant part, Section 1030(a) creates liability for 3 15 || whomever: a 16 (5)(A) knowingly causes the transmission of a program, information, code, or command, 5 17 and as a result of such conduct, intentionally causes damage without authorization, to a S 18 protected computer; 19 (5)(B) intentionally accesses a protected computer without authorization, and as a result of 20 such conduct, recklessly causes damage; 21 (5)(C) intentionally accesses a protected computer without authorization, and as a result of 22 such conduct, causes damage and loss; 23 (2)(C) intentionally accesses a computer without authorization or exceeds authorized 24 access, and thereby obtains . . . information from any protected computer; 25 (6)(A) knowingly and with intent to defraud traffics (as defined in [18 U.S.C.] section 26 1029) in any password or similar information through which a computer may be accessed a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 without authorization, if... such trafficking affects interstate or foreign commerce. 2 18 U.S.C. §§ 1030(a). 3 The phrase “without authorization” has been interpreted to mean “when the person has not 4 || received permission to use the computer for any purpose (such as when a hacker accesses 5 someone’s computer without any permission) or when the [computer owner] has rescinded 6 || permission to access the computer and the defendant uses the computer anyway.” Brekka, 581 7 F.3d at 1135; see Facebook, Inc. v. Power Ventures, Inc., 844 F.3d 1058, 1066 (9th Cir. 2016) 8 || (same). 9 Here, Plaintiff does not contest that HP had “authorized access” to Plaintiff's printers. 10 || (FAC § 122), nor that HP had authorization to install firmware updates. /d. at § 66 (“HP can 1] communicate with HP printers after it sells them. One way to communicate with printers is by 12 || updating their software.”). Plaintiff instead alleges that HP exceeded its authorized access when it 13 || conducted a remote firmware update for the purpose of limiting Class Printers’ compatibility with 14 || certain non-HP cartridges. Jd. at [§ 122-23. 3 15 The statutory definition of “exceeds authorized access” is “to access a computer with a 16 || authorization and to use such access to obtain or alter information in the computer that the 5 17 || accesser is not entitled so to obtain or alter.” 18 U.S.C. § 1030(e)(6). Allegations that HP 18 || exceeded authorized access are insufficient to state a claim under subsections (B) and (C), which 19 || only apply to conduct “without authorization.” In San Miguel, this Court held that similar 20 || allegations were insufficient to state a claim under subsections (B) and (C). San Miguel, 317 F. 21 Supp. 3d at 1085. This Court reasoned that expanding subsections (B) and (C) to include conduct 22 || that allegedly exceeded authorized access would not only be “contrary to the plain language of 23 subsections (B) and (C), but also inconsistent with other provisions of the CFAA that expressly 24 || provide for liability when a defendant ‘accesses a computer without authorization or exceeds 25 authorized access.’” /d. (quoting 18 U.S.C. § 1030(a)(2)). This remains true in the present case. 26 Section 1030(a)(5)(A), however, does not require accessing a computer “without a Case No.: 5:19-cv-05363-EJD 28 |} ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 authorization.” Instead, subsection (A) provides liability for “knowingly caus|ing] the 2 transmission of a program, information, code or command, and as a result of such conduct, 3 intentionally caus|ing] damage without authorization, to a protected computer.” 18 U.S.C. § 4 1030(a)(5)(A). HP argues that Plaintiff failed to identify any damage to his printer as a result of 5 || HP’s conduct. Motion, p. 17. Plaintiff alleges that HP knowingly transmitted the firmware update 6 || and intentionally caused damage by altering his printers’ functionality in a way that devalued the 7 || printers. FAC 32,57, 100. At the pleading stage, these allegations are sufficient. See San 8 || Miguel, 317 F. Supp. 3d at 1085-86; In re Apple & AT & TM Antitrust Litigation, 596 F.Supp.2d 9 1288 (N.D. Cal. 2008) (denying motion to dismiss Section 1030(a)(5)(A) claim where plaintiffs 10 || alleged that they authorized software update but did not authorize the resulting damages to their 11 iPhones). 12 As to Plaintiffs claim under Section 1030(a)(2)(C), HP argues that the claim fails because 13 || HP did not exceed its authorized access, and even if it did, Plaintiff has not alleged any 14 || “information” that HP “obtain[ed]” from doing so. The Court agrees. The only allegation in the 3 15 || FAC that speaks to HP obtaining information states: “[b]y exceeding its authorized access, HP a 16 || obtained and altered Class Printers’ information and data.” FAC § 123. The FAC does not state 5 17 || what information HP allegedly obtained. This “formulaic recitation of a cause of action’s S 18 elements” is not sufficient to survive a motion to dismiss. Twombly, 550 U.S. at 555. 19 Plaintiffs claim under Section 1030(a)(6)(A) fails for similar reasons. HP argues that 20 || Plaintiff failed to allege that HP trafficked “in any password or similar information through which 21 a computer may be accessed without authorization.” 18 U.S.C. § 1030(a)(6)(A). “Traffic” in this 22 statute means “transfer, or otherwise dispose of, to another, or obtain control of with intent to 23 || transfer or dispose of.” 18 U.S.C. § 1029(e)(5). Plaintiff alleges that “[t|hrough its firmware 24 || update, HP knowingly and with intent to defraud transferred or disposed of information from the 25 Class Printers, including printer-to-cartridge communications that function like passwords.” FAC 26 || 9127. Plaintiff does not allege how “printer-to-cartridge communications” function like a Case No.: 5:19-cv-05363-EJD 28 |} ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 passwords. Plaintiff also fails to allege that any information was transferred or disposed of as a 2 || result of the firmware update, or that HP intended to transfer or dispose of any information. 3 Plaintiff's allegations are insufficient to state a claim under Section 1030(a)(6)(A). J/gbal, 556 4 || U.S. at 678 (“a complaint [does not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further 5 factual enhancement.””) (citing Twombly, 550 U.S. at 557). 6 To the extent it is premised on Sections 1030(a)(5)(B), 1030(a)(5)(C), 1030(a)(2)(C), and 7 1030(a)(6)(A), Plaintiff's CFAA claim is DISMISSED without prejudice. 8 d. Trespass to Chattels 9 “The essence of the cause of action for trespass is an ‘unauthorized entry’ onto the land of 10 || another.” Miller v. Nat’l Broad. Co., 187 Cal.App.3d 1463, 1480 (1986) (citations omitted). The 1] California Supreme Court has held that the principles underlying the tort apply to allegations of 12 || digital trespass. See Intel Corp. v. Hamidi, 30 Cal.4th 1342 (2003). “[T]o prevail on a claim for 13 || trespass based on accessing a computer system, the plaintiff must establish: (1) defendant 14 || intentionally and without authorization interfered with plaintiff's possessory interest in the 3 15 computer system; and (2) defendant’s unauthorized use proximately resulted in damage to a 16 || plaintiff.” eBay, Inc. v. Bidder’s Edge, Inc., 100 F.Supp.2d 1058, 1069-70 (N.D. Cal. 2000). 5 17 Plaintiff's trespass allegations mirror those relating to its CFAA claim. Plaintiff alleges S 18 || that HP exceeded its authorized access to Plaintiff's printers when it activated a firmware update 19 || that disabled his printers. FAC § 122-23. Plaintiff further alleges that HP’s conduct caused 20 || damage “by preventing the Class Printers from operating, by impairing the condition of these 21 printers, by reducing the value of these printers, and by depriving Plaintiff and Class members of 22 || the use of these printers and of their non-HP ink cartridges for a substantial period of time.” □□□ at 23 || § 134. HP argues that because it had authorized access (/d. at § 122), Plaintiff cannot claim that 24 || HP acted “without authorization” for the purposes of a trespass claim. Motion, p. 21. 25 In San Miguel, this Court held that similar allegations were sufficient to state a claim for 26 || digital trespass despite the fact that the defendant had allegedly only exceeded authorized a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 access. San Miguel, 317 F. Supp. 3d at 1088. The Court similarly finds the allegations here 2 || sufficient to state a claim. See In re Apple & AT & TM Antitrust Litigation, 596 F.Supp.2d at 1307 3 (plaintiffs consent to install software update did not foreclose a trespass claim based on damage 4 || caused by that update); see also eBay, 100 F.Supp.2d at 1070 (trespass claim cognizable because 5 even if defendant’s web crawlers were authorized to use eBay’s system, the web crawlers 6 || exceeded the scope of any such consent when they began acting like robots by making repeated 7 || queries). 8 e. Injunctive Relief 9 HP contends that Plaintiff does not have standing to bring a claim for injunctive relief. 10 || Generally, to establish Constitutional standing under Article II, a plaintiff must show (1) a 11 concrete and particularized injury in fact, (2) a causal connection between the injury and the 12 || conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable 13 decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). A plaintiff must demonstrate 14 || constitutional standing separately for each form of relief requested. Friends of the Earth, Inc. v. 3 15 || Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 185 (2000). “For injunctive relief, which is a a 16 || prospective remedy, the threat of injury must be ‘actual and imminent, not conjectural or 5 17 || hypothetical.’” Davidson v. Kimberly-Clark Corp., 889 F.3d 956, 969 (9th Cir.), cert. denied, 139 S 18 S. Ct. 640 (2018) (citing Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). In other 19 || words, the “threatened injury must be certainly impending to constitute injury in fact” and 20 || “allegations of possible future injury are not sufficient.” Clapper v. Amnesty Int’] USA, 568 U.S. 21 398, 409 (2013) (internal quotation marks and alteration omitted). Past wrongs, though 22 || insufficient by themselves to grant standing, are “evidence bearing on whether there is a real and 23 immediate threat of repeated injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) 24 || (internal quotation marks omitted). Where standing is premised entirely on the threat of repeated 25 injury, a plaintiff must show “a sufficient likelihood that he will again be wronged in a similar 26 || way.” Jd. at 111. a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 In Davidson v. Kimberly-Clark Corp., the Ninth Circuit held that “a previously deceived 2 || consumer may have standing to seek an injunction against false advertising or labeling, even 3 || though the consumer now knows or suspects that the advertising was false at the time of the 4 || original purchase, because the consumer may suffer an actual and imminent, not conjectural or 5 || hypothetical threat of future harm. 889 F.3d at 969. The Ninth Circuit made clear that such a 6 |} consumer must still “adequately alleged that she faces an imminent or actual threat of future 7 || harm” and that such injury is concrete and particularized. /d. at 971. In that case, the Ninth 8 Circuit held that the plaintiff had standing for injunctive relief because she alleged that she desired 9 || to repurchase the product at issue in the future. /d. at 970 (distinguishing cases from the Seventh, 10 || Second, and Third Circuits because the plaintiffs in those cases did not “sufficiently allege their 11 intention to repurchase the product at issue as [plaintiff] [did] here.”). 12 HP argues that Plaintiff does not have standing to seek injunction relief because he failed 13 || to allege that he has any desire to repurchase an HP printer. Motion, p. 24-25. While Plaintiff 14 || does not allege that he desires to repurchase an HP printer, the Court does not find his failure to do 3 15 so dispositive in this case. Plaintiff alleges that he still owns the printers at issue and that HP 16 || continues to use remote firmware updates to modify its printers in a way that has allegedly harmed 5 17 || Plaintiff the past. FAC 71-72, 102. Moreover, Plaintiff raises claims not based on false 18 || advertising—for example, his trespass and CFAA claims—where the conduct complained of is 19 || capable of repetition without Plaintiff purchasing another printer. These allegations and claims 20 || distinguish Plaintiffs case from cases like Davidson, where the misconduct alleged could only 21 threaten future harm if the plaintiff repurchased the product. 22 Tn this case, the threat of a future firmware update that could further modify Plaintiff's 23 || printers is sufficiently “concrete and particularized” to establish standing, even in the absence of 24 || any allegations as to Plaintiff's desire to purchase another printer. Spokeo, Inc. v. Robins, □□□ □□ 25 Ct. 1540, 1548 (2016), as revised (May 24, 2016). The injury is particularized because it would 26 || affect Plaintiff, as an owner of HP printers, in a “personal and individual” way. /bid. □□□□□□□□□□□ a Case No.: 5:19-cv-05363-EJD 28 || ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE

1 alleged injury is also sufficiently concrete, considering that Plaintiff alleges a history of lawsuits 2 || based on similar misconduct by HP. See id. at 1549 (stating that in considering whether a harm is 3 || concrete, it is instructive to consider whether the harm has a close relationship to a harm that has 4 || traditionally been regarded as providing a basis for a lawsuit in American courts). 5 The Court finds that Plaintiff has shown a sufficient likelihood that he will be wronged 6 || again ina similar way to establish standing for injunctive relief. HP’s motion to strike □□□□□□□□□□□ 7 || request for injunctive relief is DENIED. 8 IV. Conclusion 9 For the reasons set forth above, HP’s motion to dismiss is GRANTED IN PART. 10 || Plaintiff's FDUTPA claim (Claim 1), FMAL claim (Claim 2), and CFAA claim (Claim 3) to the 11 extent it is premised on 18 U.S.C. §§ 1030(a)(5)(B), 1030(a)(5)(C), 1030(a)(2)(C), and 1030(a)(6)(A) are DISMISSED WITH LEAVE TO AMEND. HP’s motion to dismiss is DENIED 13 || inall other respects. HP’s motion to strike Plaintiff's request for injunctive relief is DENIED. 14 || Plaintiff may file and serve an amended complaint consistent with this Order no later than May 22, 3 15 |} 2020. 2 16 IT IS SO ORDERED. 5 17 || Dated: April 24, 2020 18 EDWARD J. DAVILA 19 United States District Judge 20 21 22 23 24 25 26 a Case No.: 5:19-cv-05363-EJD 28 |} ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE _