Case 3:17-cv-01331-YY Document 1 Filed 08/26/17 Page 1 of 18

Michael Fuller, OSB No. 09357

Lead Attorney for Plaintiff
Olsen Daines PC
US Bancorp Tower
111 SW 5th Ave., Suite 3150
Portland, Oregon 97204
[email protected]
Direct 503-201-4570

Mark Geragos, Pro Hac Pending

Of Attorneys for Plaintiff
Geragos & Geragos
Historic Engine Co. No. 28
644 South Figueroa Street
Los Angeles, California 90017
[email protected]
Phone 213-625-3900

(additional counsel on signature page)

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

ZACK BARTEL, an Oregon Case No. 3:17-cv-1331

consumer, individually and on
behalf of all others, CLASS ACTION
ALLEGATION COMPLAINT
Plaintiff,
Unlawful Trade Practices
v. Unjust Enrichment

SHOWTIME NETWORKS, 28 U.S.C. 1332

INC.,
Demand for Jury Trial
Defendant.

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1.

THE PARTIES

Defendant Showtime Networks, Inc. is a Delaware corporation.

In the regular course of its business, defendant advertised that

consumers could pay $99.99 to witness history by streaming the

Mayweather vs. McGregor fight live on its app, Showtime PPV.

Specifically, defendant advertised that its system could stream the

fight live in HD on its app starting at 6:00 pm PST on August 26, 2017.

2.

Plaintiff Zack Bartel is an individual consumer residing in

Portland, Oregon. Like thousands of other fight fans across the country,

plaintiff paid defendant $99.99 to stream the Mayweather fight live on

its app in HD, as defendants advertisement promised.

3.

JURISDICTION AND VENUE

This Court has jurisdiction under 28 U.S.C. 1332 because the

parties are citizens of different states and the amount in controversy

exceeds $5 million. Venue is proper under 28 U.S.C. 1391 because the

bulk of defendants Mayweather fight advertising and sales in Oregon

took place in the Portland metro area. This complaints allegations are

based on personal knowledge as to plaintiffs conduct and made on

information and belief as to the acts of others.

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4.

FACTUAL ALLEGATIONS

On August 25, 2017, in response to defendants advertisement

and representation that its system would stream the Mayweather fight

at 1080p resolution and at 60 frames per second, plaintiff paid

defendant $99.99. Plaintiffs receipt is shown below:

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5.

On August 26, 2017 at 6pm PST, like thousands of other fight

fans across the county, plaintiff turned on defendants app in

anticipation to watch the Mayweather fight. To his extreme

disappointment and frustration, plaintiff (and thousands of other

consumers) quickly learned that defendants system was defective and

unable to stream the Mayweather fight in HD as defendant had

advertised. Instead of being a witness to history as defendant had

promised, the only thing plaintiff witnessed was grainy video, error

screens, buffer events, and stalls. The screenshots below show the

quality of video plaintiff saw while he should have been watching the

Mayweather fight on defendants system in HD:

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6.

Plaintiff was using up-to-date, top-of-the-line software and

hardware, just as defendant required, including a 4th generation Apple

TV. At the same time defendants system was unable to stream the

Mayweather fight in HD, plaintiff was able to watch other streaming

services on YouTube and Netflix in crystal clear HD, as usual. Plaintiff

took a speed test of his Internet just to make sure the issues werent

being caused by a bad connection. Plaintiffs speed test results below

showed the issues were entirely due to defendants defective system:

7.

When plaintiff turned to Twitter, he saw hundreds of complaints

being tweeted by defendants other app customers in real time during

the Mayweather fight experiencing the same issue with defendants

defective service:

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8.

Defendants advertisement in iTunes below, which every

consumer who purchased defendants streaming app service saw,

represented that consumers could witness history through live

streaming access to the most anticipated sporting event of the year.

9.

As it turned out, defendant knew and should have known that

its system was defective and would not be able to confirm to defendants

promise of live HD streaming video at 1080p resolution and at 60

frames per second.

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10.

Unlike past big events like Mayweather vs. Pacquiao in 2015,

the Mayweather vs. McGregor event on August 26, 2017 was the first

major fight available on pay-per-view without a cable subscription.

11.

In hopes of maximizing profits, defendant rushed its pay-per-

view streaming service to market, without securing enough networking

bandwidth to support the number of subscribers who paid to watch the

fight. Defendants app used HLS (HTTP Live Streaming), which is a

VBR (variable bitrate) video delivery protocol. With VBR video, its

possible to perform a bitrate upshift or downshift based on how

much network bandwidth is available to the video player. Video players

that support HLS and other VBR formats (DASH, MSS Microsoft

Smooth Streaming, etc.) detect when video segments are not

downloading fast enough and perform a downshift by downloading a

lower bitrate version of the video file. Conversely, if the video player

knows its downloading the video file fast enough, it can perform an

upshift, and start downloading the higher resolution version of the

video files. Defendant knew and should have known its system wasnt

able to conform to the qualify defendant promised its customers, based

on defendants available bandwidth and subscriber numbers. Instead

of being upfront with consumers about its new, untested, underpowered

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service, defendant caused likelihood of confusion and

misunderstanding as to the source and quality of the HD video

consumers would see on fight night. Defendant intentionally

misrepresented the quality and grade of video consumers would see

using its app, and knowingly failed to disclose that its system was

defective with respect to the amount of bandwidth available, and that

defendants service would materially fail to conform to the quality of

HD video defendant promised.

12.

CLASS ALLEGATIONS

Plaintiff files this complaint as a national class action lawsuit.

The Oregon class consists of Oregon consumers who:

a) Viewed defendants app advertisement on iTunes, then paid

$99.99 to stream the Mayweather vs. McGregor fight live on

defendants app, Showtime PPV, and

b) Who were unable to view the Mayweather vs. McGregor fight live

on defendants app in HD at 1080p resolution and at 60 frames

per second, and who experienced ongoing grainy video, error

screens, buffer events, and stalls instead.

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13.

Excluded from the class are all attorneys for the class, officers

and members of defendant, including officers and members of any

entity with an ownership interest in defendant, any judge who sits on

the case, and all jurors and alternate jurors who sit on the case.

14.

The exact number of aggrieved consumers in Oregon can be

determined based on defendants sales records and data.

15.

Every aggrieved Oregon consumer misled by defendants

advertisement as alleged in this complaint suffered an actual

ascertainable loss of the $99.99 they paid to stream the Mayweather

fight live in HD as advertised. But for defendants false representations

as alleged in this complaint and its failure to disclose known defects

and nonconformities in its system and service, plaintiff and the

members of the putative class would not have paid defendant any

money and would have instead have viewed the Mayweather fight

through a different service.

16.

Defendants behavior as alleged in this complaint willfully

violated the Oregon Unlawful Trade Practices Act (UTPA), including

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ORS 646.608(1)(b), (e), (g), (i), and (t). This UTPA violation is common

to the Oregon class.

17.

The class is so numerous that joinder is impracticable. Upon

information and belief, the Oregon class alone includes thousands of

members, based on the historic nature of the fight and the record-

breaking demand to watch it.

18.

Common questions of fact and law predominate over any

questions affecting only individual class members. Common questions

include whether plaintiff and the Oregon class members are entitled

to equitable relief, whether defendant acted willfully, recklessly,

knowingly, or intentionally, whether plaintiff and the Oregon class

members are entitled to recover actual damages or statutory damages

or punitive damages from defendant, and whether plaintiff and the

Oregon class are entitled to recover fees and costs for defendants UTPA

violation.

19.

Plaintiffs claims are typical of the claims of the Oregon class

because each was misled by defendants false representations and

failures to disclose, the injuries suffered by plaintiff and the Oregon

class members are identical ($99.99), and plaintiffs claim for relief is

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based upon the same legal theories as are the claims of the other class

members. Plaintiff will fairly and adequately protect and represent the

interests of the class because his claim is typical of the claims of the

Oregon class, he is represented by nationally known and locally

respected attorneys who have experience handling class action

litigation and consumer protection cases who are qualified and

competent, and who will vigorously prosecute this litigation, and their

interests are not antagonistic or in conflict with the interests of the

Oregon class.

20.

A class action is superior to other methods for fair and efficient

adjudication of this case because common questions of law and fact

predominate over other factors affecting only individual members, as

far as plaintiff knows, no class action that purports to include Oregon

customers suffering the same injury has been commenced in Oregon,

individual class members have little interest in controlling the

litigation, due to the high cost of actions, the relatively small amounts

of damages, and because plaintiff and his attorneys will vigorously

pursue the claims. The forum is desirable because the bulk of

defendants sales in Oregon took place in the Portland metro area. A

class action will be an efficient method of adjudicating the claims of the

class members who have suffered relatively small damages, as a result

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of the same conduct by defendant. In the aggregate, class members

have claims for relief that are significant in scope relative to the

expense of litigation. The availability of defendants sales records and

data will facilitate proof of class claims, processing class claims, and

distributions of any recoveries.

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21.

OREGON CLASS CLAIMS FOR RELIEF

Claim 1

VIOLATION OF ORS 646.608

Defendant willfully, recklessly, knowingly and intentionally

violated ORS 646.608 as alleged above, causing plaintiff and the

Oregon class ascertainable losses.

22.

Plaintiff and the Oregon class are entitled to equitable relief in

the form of an accounting, restitution, and unless agreed upon by

defendant, an order to preserve all documents and information (and

electronically stored information) pertaining to this case. Plaintiff and

the Oregon class are entitled to recover actual damages or $200

statutory damages, whichever is greater, interest and fees and costs

under ORS 646.638. Defendants violation of the UTPA as alleged above

was reckless, in pursuit of profit, and constituted a wanton, outrageous

and oppressive violation of the right of Oregon consumers to be free

from unlawful trade practices. Plaintiff and the Oregon class are

entitled to recover punitive damages under ORS 646.638.

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23.

Claim 2

UNJUST ENRICHMENT

As a matter of justice and equity, defendant should not be able

to retain the pay-per-view fees it charged plaintiff and the Oregon class

for live HD streaming services that were never provided or received.

Plaintiff and the Oregon class are entitled to restitution based on

defendants unjust enrichment as alleged in this complaint.

24.

Demand for jury trial.

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PRAYER FOR RELIEF

Plaintiff seeks relief for himself and the proposed Oregon class

as follows:

A. Unless agreed upon by defendant, an order to preserve all

documents and information (and electronically stored

information) pertaining to this case,

B. An order certifying this matter as a class action,

C. Judgment against defendant for actual, statutory, and punitive

damages, interest, and reimbursement of fees and costs,

D. And other relief the Court deems necessary.

August 26, 2017

RESPECTFULLY FILED,

s/ Michael Fuller
Michael Fuller, OSB No. 09357
Lead Attorney for Plaintiff
Olsen Daines PC
US Bancorp Tower
111 SW 5th Ave., Suite 3150
Portland, Oregon 97204
[email protected]
Direct 503-201-4570

(additional counsel information on next page)

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Rex Daines, OSB No. 952442 Ben Meiselas, Pro Hac Pending
Of Attorneys for Plaintiff Of Attorneys for Plaintiff
Olsen Daines PC Geragos & Geragos
US Bancorp Tower Historic Engine Co. No. 28
111 SW 5th Ave., Suite 3150 644 South Figueroa Street
Portland, Oregon 97204 Los Angeles, California 90017
[email protected] [email protected]
Phone 503-362-9393 Phone 213-625-3900

Robert Le, OSB No. 094167 Kelly Jones, OSB No. 074217
Of Attorneys for Plaintiff Of Attorneys for Plaintiff
[email protected] [email protected]

PROOF OF MAILING

Under ORS 646.638(2), I declare and certify that on the date

below I caused a copy of this complaint to be mailed to the Oregon
Attorney General at the following address:

Ellen Rosenblum
Oregon Attorney General
Oregon Department of Justice
1162 Court Street NE
Salem, Oregon 97301-4096

August 26, 2017

s/ Michael Fuller
Michael Fuller, OSB No. 09357
Lead Attorney for Plaintiff
Olsen Daines PC
US Bancorp Tower
111 SW 5th Ave., Suite 3150
Portland, Oregon 97204
[email protected]
Direct 503-201-4570

COMPLAINT Page 18 of 18