Stanbury Fishelman, Inc

Stanbury Fishelman, Inc.

9200 Sunset Boulevard, Penthouse 30

Los Angeles, CA 90069-3601

Tel:(310) 278-1800

Fax:(310) 278-1802

George Stanbury, State Bar No. 60048

Bruce C. Fishelman, State Bar No. 117945

H. Scott Leviant, State Bar No. 200834

Attorneys for Plaintiffs

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES

LEONARD KNABLE, et al.,
Plaintiffs,
vs.
INTUIT INC., et al.,
Defendants. / Case No.: BC 290840
Hon. Charles W. McCoy
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S DEMURRER TO PLAINTIFFS’ SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES
Date:January 14, 2004
Time:1:45 p.m.
Dept.:323
Action Filed:February 24, 2003
Trial Date:None

TO THE COURT, TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:

Plaintiffs submit the following Memorandum of Points and Authorities in Opposition to Defendant INTUIT INC.’s Demurrer to Plaintiffs’ Second Amended Complaint. Plaintiffs’ Opposition is based upon this Memorandum of Points and Authorities, Plaintiffs’ Compendium Of Extra-Jurisdictional Authorities Cited By Plaintiffs In Plaintiffs’ Memorandums Of Points And Authorities In Opposition To Defendant’s Demurrer To Plaintiffs’ Second Amended Complaint, and any further oral argument received by this Court at the hearing of this matter.

Dated this 22nd day of December 2003.Respectfully submitted,

Stanbury Fishelman, Inc.

9200 Sunset Boulevard, Penthouse 30

Los Angeles, CA 90069-3601

By: / George Stanbury
H. Scott Leviant,
Attorneys for Plaintiffs

1

Case No.: BC290840Plaintiffs’ Opposition To Defendant’s Demurrer To Plaintiffs’ Second Amended Complaint; Memorandum Of Points And Authorities

TABLE OF CONTENTS

I.INTRODUCTION.

II.SUMMARY OF ARGUMENT

III.PLEADINGS ARE TO BE LIBERALLY CONSTRUED.

A.Notice Pleading Requires Only That A Complaint Apprise The Defendant Of The Claims Asserted.

B.When Evaluating A Demurrer, All Facts Alleged Must Be Presumed True.

C.Plaintiffs Have Fully Apprised Defendant Of All Claims Asserted.

IV.THE ECONOMIC LOSS DOCTRINE DOES NOT APPLY.

A.The License Agreement Presented By Defendant Reveals Fraud In The Inducement, Vitiating Arguments Presuming The Existence Of A Contract.

1.The Terms Of The License Agreement And The Allegations Of The FAC Demonstrate Clear Fraud By Defendant.

2.The License Agreement, Induced Through Fraud, Is Voidable.

3.The UCC Recognizes A Fraud Exception To The Economic Loss Rule.

4.On A Suit Sounding In Fraud And Deceit, Such As That Brought By Plaintiffs, Tort Remedies Are Available Even On Sales Transactions.

5.Because the License Agreement Violates California Law, It Is Void.

B.The Economic Loss Doctrine Does Not Apply To The Facts As Pleaded Because Defendant Misconstrues And Misstates Plaintiffs Allegations.

C.Defendant’s Egregious Conduct Permits Tort Recovery Even If Plaintiffs’ Only Losses Were Economic Losses.

1.Class Plaintiffs Were Targeted By Defendant’s Deceitful Conduct.

2.The Harm Was Foreseeable.

3.It Is Likely That Plaintiffs Suffered Injury.

4.Defendant’s Wrongful Conduct Is The Direct Cause Of Plaintiff’s Injuries; There Is No Intervening Event Between Wrong And Injury.

5.Substantial Moral Blame Attaches To Defendant’s Deceit.

6.It Is Important To Prevent Similar Future Harms.

V.PLAINTIFF’S ALLEGATIONS SUPPORT ADDITIONAL CAUSES OF ACTION, GIVING FURTHER BASES FOR DENYING DEFENDANT’S DEMURER.

VI.CLASS PLAINTIFFS HAVE PROPERLY PLEADED A CAUSE OF ACTION UNDER THE CALIFORNIA UNFAIR COMPETITION LAW.

A.California’s Unfair Competition Law Provides A Powerful Mechanism For Private Plaintiffs To Correct Unfair Business Practices.

1.Elements Of The UCL – Definitions.

a)“Unlawful” Under The UCL

b)“Unfair” Under The UCL

c)“Fraudulent” Under The UCL

2.Even One Instance Of Wrongful Conduct Is Sufficient To Invoke Act.

3.Who May Sue Under The UCL

B.Defendant Engaged In Unfair Business Practices.

1.Unlawful Conduct – Defendants Have Violated State Law.

2.The Wide Array Of Unfair Business Practices Related To Fraudulent Concealment Of Secondary Spy Software.

3.False Contract – Routinely Breaching Contracts

VII.CLASS PLAINTIFFS HAVE PROPERLY PLEADED A CAUSE OF ACTION UNDER THE CONSUMER LEGAL REMEDIES ACT (Civ. Code §§ 1750, et seq.)

A.Class Plaintiffs Have Properly Pleaded A Statutory Violation Of This Act.

B.Class Plaintiffs Have Properly Pleaded Specific Violations Of This Act.

C.Notice Pleading Requirements Have Been Satisfied.

D.California Has Long Recognized That Implied Representations Bear The Same Legal Significance As Affirmative Representations.

VIII.PLAINTIFFS’ PROPERLY PLEADED CAUSE OF ACTION FOR NEGLIGENCE IS NOT PRECLUDED BY THE UNIFORM COMMERCIAL CODE.

A.California Recognizes The Existence Of A Common Law Duty Of Care.

B.Plaintiffs’ Negligence Cause Of Action Is Properly Construed As A Claim, Pleaded In The Alternative, For Negligent Misrepresentation.

IX.PLAINTIFFS HAVE PROPERLY PLEADED SUFFICIENT FACTS, ACTS AND/OR DERELICTIONS TO SUPPORT A FRAUD CAUSE OF ACTION.

A.Actual Fraud

B.Deceit

1.Plaintiffs Have Properly Pleaded Necessary Allegations For A Fraudulent Concealment Cause Of Action.

2.Plaintiffs’ “Reliance” Is Properly Pleaded As Lack Of Knowledge And Inaction Resulting From Lack Of Knowledge.

3.Plaintiffs’ Fraud And Deceit Claim Is Applicable To The Class Of Affected Consumers.

X.CONCLUSION

TABLE OF AUTHORITIES

California Citations

Aas v. Superior Court (2000) 24 Cal.4th 627...... 7, 13, 14

Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352...... 18

Allen v. Jones (1980) 104 Cal.App.3d 207...... 11

Allied Grape Growers v. Bronco Wine Co. (1988) 203 Cal.App.3d 432...... 24

Andrepont v. Meeker (1984) 158 Cal.App.3d 878...... 27

Application Group, Inc. v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881...... 21

Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232...... 8

Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94...... 20

Cel-Tech Communications, Inc. v. L.A. Cellular Tel. Co. (1999) 20 Cal.4th 163...... 20, 21, 22

Colby v. Title Ins. & Trust Co. (1911) 160 Cal. 632...... 13

Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388...... 10, 27

Cooper v. Jevne (1976) 56 Cal.App.3d 860...... 29

Daar v. Yellow Cab Company (1967) 67 Cal.2d 695...... 4

Eads v. Marks (1952) 39 Cal.2d 807...... 11, 16

Geernaert v. Mitchell (1995) 31 Cal.App.4th 601...... 28

Goodman v. Kennedy (1976) 18 Cal.3d 335...... 29

Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137...... 8

Grieves v. Sup.Ct. (Fox) (1984) 157 Cal.App.3d 159...... 18

Grimes v. Allen (1949) 93 Cal.App.2d 653...... 12

Grinnell v. Charles Pfizer & Co. (1969) 274 Cal.App.2d 424...... 28

Heliotis v. Schuman (1986) 181 Cal.App.3d 646...... 29

In re Cheryl E. (1984) 161 Cal.App.3d 587...... 27

Intel Corp. v. Hamidi (2003) 1 Cal.Rptr.3d 32, 39 [30 Cal.4th 1342]...... 19

J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799...... 16, 17

Kiseskey v. Carpenters’ Trust For Southern California (1983) 144 Cal.App.3d 222...... 4, 26

Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965...... 23

Kraus v. Trinity Management Services, Inc. (2000) 23 Cal.4th 116...... 21, 23

Mohlmann v. City of Burbank (1986) 179 Cal.App.3d 1037...... 8

Morris v. Harbor Boat Building Co. (1952) 112 Cal.App.2d 882...... 9

North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764...... 17

Outboard Marine Corp. v. Superior Court (1975) 52 Cal.App.3d 30...... 29

Pacific State Bank v. Greene (Filed August 7, 2003) 2003 WL 21804987 (Cal.App. 3 Dist.)....9

People v. Thomas Shelton Powers, M.D., Inc. (1992) 2 Cal.App.4th 330...... 23

Perkins v. Superior Courtof Los Angeles County (1981) 171 Cal.App.3d 1...... 4

Podolsky v. First Healthcare Corp. (1996) 50 Cal.App.4th 632...... 22, 23

Quelimane Co. v. Stewart Title Guaranty Co., 19 Cal.4th 26 (1998)...... 23

Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26...... 18, 21, 23

Ron Greenspan Volkswagen, Inc. v. Ford Motor Land Development Corp. (1995) 32 Cal.App.4th 985 9

Rothstein v. Janss Inv. Corp. (1941) Cal.App.2d 64...... 29

Saunders v. Superior Court (1994) 27 Cal.App.4th 832...... 22

Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d 908...... 11

Seeger v. Odell (1941) 18 Cal.2d 409...... 28

Seely v. White Motor Co. (1965) 63 Cal.2d 9...... 14

Software Design & Application, Ltd. v. Hoefer & Arnett, Inc. (1996) 49 Cal.App.4th 472...... 27

Spangenberg v. Spangenberg (1912) 19 Cal.App. 439...... 12

Spector v. Pete (1958) 157 Cal.App.2d 432...... 13

Sprague v. Frank J. Sanders Lincoln Mercury, Inc. (1981) 120 Cal.App.3d 412...... 11

State Farm & Cas. Co. v. Superior Court (1996)45 Cal.App.4th 1093...... 21, 22, 24

Stop Youth Addiction v. Lucky Stores, Inc. (1998) 17 Cal.4th 553...... 21, 23

Sun 'n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671...... 27

Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559...... 19, 20, 26, 28

Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145...... 26, 28

Vasquez v. Superior Court (1971) 4 Cal.3d 800...... 26

Venice Town Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547...... 18

Williams v. Graham (1948) 83 Cal.App.2d 649...... 10, 17, 29

Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952...... 22

Zamora v. Shell Oil Co. (1997) 55 Cal.App.4th 204...... 16

Federal Citations

BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 116 S.Ct. 1589...... 1, 17

CompuServe Inc. v. Cyber Promotions, Inc. (S.D.Ohio 1997) 962 F.Supp. 1015...... 19

eBay, Inc. v. Bidder’s Edge, Inc. (N.D. Cal. 2000) 100 F.Supp.2d 1058...... 20

Orkin Exterminating Co., Inc. v. F.T.C. (11th Cir. 1988) 849 F.2d 1354...... 24

Standard Platforms, Ltd. v. Document Imaging Systems Corp. (N.D.Cal. 1995) 1995 WL 691868 15

Other Authorities

BAJI No. 12.31 (9th ed. 2002)...... 28

State v. Corcoran (1994) 186 Wis.2d 616, 522 N.W.2d 226...... 2

Statutes

Business & Professions Code section 17200, et seq. ("UCL")...... passim

Business & Professions Code section 17201...... 23

Cal Civ Code § 1710...... 28

Cal. Bus. & Prof. Code § 17201...... 23

Cal. Civ. Code § 1711...... 30

Civil Code section 1550...... 12

Civil Code section 1572...... 28

Civil Code section 1667...... 12

Civil Code section 1709...... 12, 28

Civil Code section 1710...... 28

Civil Code section 1751...... 3, 26

Civil Code section 1770...... 23

Civil Code section 3333...... 12

Civil Code section 3342...... 12

Civil Code section 3343...... 10, 11, 12

Code of Civil Procedure section 452...... 4

Commercial Code section 2721...... 10

Consumer Legal Remedies Act, Civil Code section 1750, et seq....... 12, 25, 26

Treatises

1 Witkin, Summary of Cal. Law, (9th ed. 1987) Contracts, § 403...... 9

1 Witkin, Summary of Cal. Law, (9th ed. 1987) Contracts, § 430...... 12

3 Witkin, Summary of Cal. Law (9th ed. 1987) Sales, § 171...... 10

5 Witkin, Summary of Cal. Law, (9th ed. 1987) Torts, § 676...... 28

5 Witkin, Summary of Cal. Law, (9th ed. 1987) Torts, § 676-677...... 28

5 Witkin, Summary of Cal. Law, (9th ed. 1987) Torts, § 697...... 29

5 Witkin, Summary of Cal. Law, (9th ed. 1987) Torts, § 702...... 17, 29

REST 2d TORTS § 217...... 19

REST.2D TORTS, § 525...... 28

REST.2D TORTS, § 551...... 29

1

Case No.: BC290840Plaintiffs’ Opposition To Defendant’s Demurrer To Plaintiffs’ Second Amended Complaint; Memorandum Of Points And Authorities

MEMORANDUM OF POINTS AND AUTHORITIES

I.INTRODUCTION.

“In January 1990, Dr. Ira Gore, Jr. (respondent), purchased a black BMW sports sedan for $40,750.88 from an authorized BMW dealer in Birmingham, Alabama. After driving the car for approximately nine months, and without noticing any flaws in its appearance, Dr. Gore took the car to ‘Slick Finish,’ an independent detailer, to make it look ‘ “snazzier than it normally would appear.” ‘ 646 So.2d 619, 621 (Ala.1994). Mr. Slick, the proprietor, detected evidence that the car had been repainted. . . . Dr. Gore alleged, inter alia, that the failure to disclose that the car had been repainted constituted suppression of a material fact.”

(BMW of North America, Inc. v. Gore (1996) 517 U.S. 559, 563, 116 S.Ct. 1589, 1593-1593, footnotes omitted.) The jury in that action was so offended by the willful nondisclosure of information that it “assessed $4 million in punitive damages, based on a determination that the nondisclosure policy constituted ‘gross, oppressive or malicious’ fraud. (Id., at 1594.)

Here, consumers of Defendant’s TurboTax® product were likewise deceived by Defendant when they purchased tax preparation software but were not told that along with it came a spying mechanism that intermeddled with their computers and exposed their private affairs to INTUIT INC. or anyone else to whom Defendant disclosed that information.

It may be helpful to analyze the consumers in this case to car owners purchasing a new-fangled car stereo that receives perfect digital music signals without any commercials from some satellite. The sound is more pure than even CD recordings. But what the car owner isn’t told, is that when the radio is installed, a secret black box, from another company, is also installed with the radio. That black box is connected to every electrical component in the car, and takes control of the car’s own computer. The black box watches the electrical flow to every component of the car, just to be sure that the car owner doesn’t connect his MP3 player to the car radio to record those acoustically flawless songs. However, one of the downsides to this little black box is that it retards the car’s performance, making it harder to accelerate. Car owner then learns about this insidious little tag-along in his car. What are car owner’s damages? Car owner’s damages are multi-fold. First the deceitful addition and unknown installations of the black box was a tortuous act that caused a direct emotional insult, harm and personal injury to the car owner. Further, the car owner’s vehicle suffered a direct loss and harm that included damage to its performance and function. Here, consumers were stunned and emotionally upset to learn that Defendant had installed Macrovision’s SafeCast software, without consent or disclosure, on their computers. This direct physical injury was increased when consumers learned that their property i.e. their computers were also damaged by the undisclosed software. And finally, consumers were directly harmed by learning that this “spy” software enabled Intuit to obtain and disclose private information of the consumers without their knowledge or consent.

Often mislabeled as “viruses”, programs that appear to be designed for one purpose, but actually do something different are more correctly labeled “Trojan horses” (or simply “Trojans” from the famous “gift” horse in history).[1] Trojan horses are often designed to do something improper or damaging to a computer system. TurboTax® is appropriately characterized as a “Trojan horse” due to the fraudulently hidden installation of Macrovision’s SafeCast software. While TurboTax® is sold as consumer tax software, the “gift” program accompanying TurboTax® inserts hidden files, consumes computer resources without consent, and monitors activity on consumers’ computers, among other improper activities.

Plaintiffs have been victimized by a cynical, willful plan by Defendant to defraud consumers for commercial gain. That injury to Plaintiffs should not be compounded by allowing Defendant to evade accountability for improper, unlawful and fraudulent conduct.

II.SUMMARY OF ARGUMENT

By erroneously applying the “economic loss doctrine”, Defendant’s seek to deprive Plaintiffs of their “day in court”. To further this deceit, the Defendant relies upon a facially fraudulent License Agreement and/or resorts to “re-writing” the complaint as follows:

• Defendant asserts that the “economic loss doctrine” precludes Plaintiffs’ claims (Demurrer P1:9-10). This ignores the allegations that Defendant lied and deceived Plaintiffs and consumers by failing to disclose that “spy” software was also being installed along with the disclosed tax preparation software (FAC, ¶ 43);
• Asserting that the CLRA and unfair business practices claims are “barred” by the economic loss rule (Demurrer P1:22-25). No cited case supports this statement and the public policy behind these consumer protection statutes would be undermined by such an application (See, e.g., Civ. Code, § 1751);
• Asserting that Plaintiffs were “dissatisfied with how” TurboTax® performed (Demurrer P2:16-17). In truth, Plaintiffs allege that they and others were lied to when they purchased TurboTax® because they were not told that a separate program made by a different company was also being installed to “spy” on physically “take-over” portions of their computers’ operating system;
• Misleading this Court by stating that Plaintiffs do not allege they were “unaware” of the spy software (Demurrer P.3:13). In fact, Plaintiffs repeatedly allege that they purchased TurboTax® without any knowledge or consent that the spy software would be included and/or installed (FAC, ¶¶ 4-6, 43);
• Asserting that the License Agreement by its terms limited consumer “warranties” so that these claims for fraud, deceit and misrepresentation can only be remedied by a 60 day unconditional refund (Demurrer P.3:23-26)

With the “economic loss doctrine” vitiated by Defendant’s affirmative fraud, the majority of Defendant’s Demurrer is irrelevant. The remainder is an unsupportable attempt to circumvent the Legislature’s will by de-clawing consumer remdial statutes with anti-waiver provisions and disregard the longstanding policy in California of upholding Notice Pleading.

III.PLEADINGS ARE TO BE LIBERALLY CONSTRUED.

It is the well-established law in, and policy of, the State of California that Motions attacking pleadings will not be sustained unless the objections to the pleading are well taken. A complaint will be construed “liberally . . . with a view to substantial justice between the parties.” (Code Civ. Proc. § 452.) Defendant’s Demurrer is inconsistent with, and does not acknowledge, this position.

A.Notice Pleading Requires Only That A Complaint Apprise The Defendant Of The Claims Asserted.

In Perkins v. Superior Courtof Los Angeles County (1981) 171 Cal.App.3d 1, 6, the Court explained the purpose of a complaint, observing, “What is important is that the complaint as a whole contain sufficient facts to appraise the defendant of the basis upon which the plaintiff is seeking relief.” (Accord, Kiseskey v. Carpenters’ Trust For Southern California (1983) 144 Cal.App.3d 222, 234, stating “[T]he question is whether the pleading as a whole apprises the adversary of the factual basis of the claim.”)

B.When Evaluating A Demurrer, All Facts Alleged Must Be Presumed True.

In Daar v. Yellow Cab Company (1967) 67 Cal.2d 695, the Supreme Court of California summarized the presumptions raised in favor of the Plaintiff when testing the sufficiency of Plaintiff’s complaint by a demurrer:

“In our examination of the complaint we are guided by the well settled principles governing the testing of its sufficiency by demurrer: A demurrer admits all material and issuable facts properly pleaded.”

(Darr, 67 Cal.2d at 713.) Much of Defendant’s Memorandum discards this precept, ignoring the detailed allegations contained with Plaintiffs’ First Amended Complaint (hereinafter sometimes referred to as “FAC”) at paragraphs 5-7 and 3-51.

C.Plaintiffs Have Fully Apprised Defendant Of All Claims Asserted.

Plaintiffs have filed a FAC that sets forth Plaintiffs’ claims in detail. These allegations include the following: (1) the Turbo Tax product included “detrimental security software from Macrovision” that damaged the computers of consumers (FAC ¶4); (2) the “destructive nature of the Macrovision” software was not disclosed to purchasers and was intentionally hidden by Intuit (FAC ¶5); (3) that “private information” of consumers is obtained by Intuit without the knowledge or consent of consumers and then transmitted over the Internet (FAC ¶5); (4) that by design the Macrovision spy software “did not include any ability to uninstall” the spy software (FAC ¶5); (5) the TurboTax® product with the undisclosed spy software “constitute deficient products that have been unfairly, unlawfully, improperly and fraudulently offered, through uniform commercial solicitations to “elderly and disabled individuals” and to the general consumer population (FAC ¶6, 7); (6) that Intuit “acted in furtherance of a conspiracy to disadvantage, damage, defraud and injure Plaintiffs, and to improperly and illegally profit at Plaintiffs’ expense (FAC ¶17); (7) that “Plaintiffs bring this action individually, as private attorneys-general, pursuant to the California Business & Professions and Civil Codes, and on behalf of themselves and as representatives of all similarly situated persons” (FAC ¶24); (8) that each Plaintiff “purchased and installed” the TurboTax® product (FAC ¶32); (9) that the TurboTax® product with the undisclosed spy software “makes a large number of alterations and additions to the consumer’s computer” without the consumers knowledge or consent (FAC ¶35); (10) the undisclosed spy software “interferes with the ability of consumers to backup and restore their [computer] systems” (FAC ¶38); (11) the hidden spy software used by TurboTax also interferes with the ability of consumers to modify hardware on their computer systems” (FAC ¶39); (12) the deceptively concealed spy software interferes with computers using RAID or that are connected with network printers (FAC ¶ 40, 41); (13) the undisclosed spy software steals “roughly 1.4 Megabytes (“MB”) of memory or more at all times, even when TurboTax® is not running” (FAC ¶42); (14) “Consumers are not advised at any time that the Macrovision DRM software is installed separately on their computer” (FAC ¶43); (15) that Defendant INTUIT, INC. does not warn consumers that TurboTax has the ability to violate their right of privacy” (FAC ¶47); (16) that Defendant INTUIT, INC. has implemented its onerous activation scheme [and included the hidden spy software] in an attempt to harvest [private consumer information including] customer contact information. With this information, Defendant INTUIT, INC. is intent upon shifting towards a direct sales business model. The Macrovision DRM software was intentionally included with TurboTax software for the commercial purpose of forcing all customers to disclose their complete location information” (FAC ¶50); (17) the “TurboTax products cause dangerous and destructive changes to a customer’s computer caused by the inclusion of the Macrovision security product” (FAC ¶55); (18) the hidden spy software can access and transmit “private information” of consumers “over the Internet” (FAC ¶55); (19) that “INTUIT, INC. made rote and repetitive material and intentional misrepresentations and false promises to Plaintiffs, while fraudulently concealing other material facts from Plaintiffs. The material, fraudulent misrepresentations, false promises, and fraudulent omissions are set forth herein, and include, without limitation, the following examples: (a) Uniform, written solicitations to consumers, which solicitations uniformly promised that purchasers would have access to various features in the TurboTax products without the need to disclose personal information to Defendant INTUIT, INC.; (b) Uniform failure to disclose in Defendants’ written product literature, packaging, and solicitations to consumers that Defendant INTUIT, INC.’s TurboTax products used undisclosed security software that would dangerously modify computer systems, all while failing to provide the promised product access and benefits” (FAC ¶84); (20) that “INTUIT, INC. made its material fraudulent misrepresentations and fraudulently concealed material information for the primary purposes of inducing Plaintiffs to purchase TurboTax products without knowledge of the dangerous and destructive security software included therewith” (FAC ¶ 87); (21) that “INTUIT, INC. made its material fraudulent misrepresentations and fraudulently concealed material information through uniform, written product literature, product packaging and advertisements” (FAC ¶88); and (22) that “millions of individuals” have purchased and installed the deceptively concealed spy software and have been physically, emotionally, and economically damaged by it, including actual damage to their own personal computers, a request for punitive damages, and a request for disgorgement of ill-gotten gains and an accounting of profits (FAC ¶8, 57, 58, 59, 81, 91, 92, 99, 100, 101).