Case 3:15-cv CRB Document 105 Filed 11/24/15 Page 1 of 76

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1 Case :-cv-000-crb Document 0 Filed // Page of 0 0 WHATLEY KALLAS LLP Alan M. Mansfield (SBN ) amansfield@whatleykallas.com Sansome Street, th Fl., PMB # San Francisco, CA 0 Tel: () 0-0 Fax: () - BURSOR & FISHER, P.A. L. Timothy Fisher (SBN ) ltfisher@bursor.com Julia A. Luster (SBN 0) jluster@bursor.com Neal J. Deckant (admitted pro hac vice) ndeckant@bursor.com 0 North California Boulevard, Suite 0 Walnut Creek, CA Tel: () 00- Fax: () 0-00 Co-Lead Interim Class Counsel IN RE NVIDIA GTX 0 GRAPHICS CARD LITIGATION THIS DOCUMENT RELATES TO: ALL ACTIONS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CLASS ACTION SECOND AMENDED CONSOLIDATED CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL Plaintiffs Andrew Ostrowski, Mark Roushion, Kiloe Young, Jason Doerrer, Pedro Santiago, Kyle Ellis, Andy Torrales, Dylan Jordan, Joseph Vorraso, David Dropski, Austin Verlinden, Stephen Denz, Joel Bernabel, Jan Paolo Jimenez, Timothy Farley, Alexander Montgomery, Ryan Brenek, Jorrell Dye, Chester Bailey, Gukjin Chung, Garret Giordano, Francis Palagano, and Patrick E. Parker (collectively, Plaintiffs ), on behalf of themselves and all others similarly situated, by and through their undersigned counsel, hereby file this Second Amended Consolidated Class Action Complaint against Defendants NVIDIA Corporation ( NVIDIA ), Gigabyte Global Business Corporation d/b/a

2 Case :-cv-000-crb Document 0 Filed // Page of 0 0 Giga-Byte Technology Co. Ltd., G.B.T. Inc. (together with Gigabyte Global Business Corporation, Gigabyte ), ASUS Computer International ( ASUS ), EVGA Corporation ( EVGA ) (collectively, the Defendants ), and DOES -0, and allege as follows on information and belief, except for information identified as being based on personal knowledge, which allegations are likely to have evidentiary support after a reasonable opportunity for further investigation and discovery: JURISDICTION AND VENUE. This Court has subject matter jurisdiction over this action pursuant to U.S.C. (d) because there are more than 00 Class Members and the aggregate amount in controversy exceeds $,000,000, exclusive of interest, fees, and costs, and at least one Class Member is a citizen of a state different from Defendants. This Court also has supplemental jurisdiction over state law claims pursuant to U.S.C... This Court has personal jurisdiction over Defendants because Defendants have sufficient minimum contacts with California or have otherwise purposely availed themselves of the markets in California through the promotion, marketing, and sale of their products and services in California to render the exercise of jurisdiction by this Court permissible under traditional notions of fair play and substantial justice.. Venue is proper under U.S.C. (a) because () Defendants are subject to personal jurisdiction in this District, () Defendants are either based in or conduct substantial business in this District, and () a substantial part of the events or omissions giving rise to these claims occurred in this District. Defendants engaged in the extensive promotion, marketing, distribution, and sales of the products at issue in this District, and at least two Defendants have their corporate headquarters in this District. NATURE OF THE ACTION. This is a nationwide class action brought on behalf of all consumers who purchased stand alone graphics cards incorporating the NVIDIA GeForce GTX 0 graphics processing units Graphics cards are also known as graphics accelerators, video cards, display cards, and display adapters.

3 Case :-cv-000-crb Document 0 Filed // Page of 0 ( GPU ) (hereinafter GTX 0 or GTX 0 devices ), which were sold based on misleading representations that the GTX 0: () operates with a full gigabytes ( GB ) of video random access memory ( VRAM ) instead of the actual. GB of VRAM and a less performant and decoupled 0. GB spillover segment that operates as slow as one-seventh the speed of the. GB pool once the device is required to access more than. GB of memory, () has render output processors ( ROPs ), as opposed to ROPs, and () has an L cache capacity of,0 kilobytes ( KB ), as opposed to, KB, and omitted material facts to the contrary.. Through their concerted efforts, Defendants engaged in a scheme to mislead consumers nationwide about the characteristics, qualities, uses, and benefits of the GTX 0 by uniformly representing that the GTX 0 provides a true GB of VRAM, ROPs, and,0 KB of L cache capacity. As advertised, labeled and marketed, the GTX 0 purports to feature GB of memory. However, because the final MB runs at a materially slower rate than the first. GB, the GTX 0 devices do not function as if they have a full GB of memory, a material selling point and characteristic for these devices.. Defendants marketing of the GTX 0, which focused on its GB memory capacity, was intended to and did create the perception among purchasers that the product conformed to the advertised specifications. As evidence of the materiality of such representations, this deception or false description has led to the creation of a petition in which close to,000 purchasers have requested that the FTC take action against NVIDIA and asking for refunds. As set forth below, NVIDIA has 0 admitted the published GTX 0 specifications were either false or misleading. NVIDIA s own Senior VP of GPU Engineering, Jonah Alben, has admitted the GTX 0 does not meet the specifications and characteristics Defendants advertised, and its CEO has admitted these concerns were material to consumers. Under the most common usage, gigabyte is,0 megabytes, and megabyte is,0 kilobytes. Thus, Plaintiffs allegations that the GTX 0 was mislabeled as having,0 KB of L cache, when it rather had, KB, is equivalent to alleging the GTX 0 was mislabeled as having MB of L cache, when it rather had. MB. Limitations-GTX-0.

4 Case :-cv-000-crb Document 0 Filed // Page of 0 0. All Class Members were exposed to Defendants marketing scheme and misleading statements and paid a price premium for GTX 0 devices. Plaintiffs and the Class they seek to represent thereby suffered injury in fact and a loss of money or property as a result of such acts and practices. PARTIES. On personal knowledge Plaintiff Andrew Ostrowski is a citizen and resident of Cass County, Michigan. Mr. Ostrowski purchased two Gigabyte NVIDIA GeForce GTX 0 GB graphics cards for personal purposes and not for resale in or about late December 0 and early January 0, and paid approximately $0.00 per device. Prior to making these purchases, Mr. Ostrowski was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Ostrowski reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Ostrowski understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Ostrowski based his purchase decisions in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing these purchase decisions in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false or misleading. The GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications for the GTX 0. Attached hereto as Exhibit A is the product packaging for the Gigabyte GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Mark Roushion is a citizen and resident of California. Mr. Roushion purchased two EVGA NVIDIA GeForce GTX 0 GB graphics cards for $. each for personal purposes and not for resale in or about September 0. Mr. Roushion decided to

5 Case :-cv-000-crb Document 0 Filed // Page of 0 0 purchase the GTX 0 because he had a prior version of a NVIDIA graphics card and wanted to purchase a version he believed had more VRAM and thus more value for his money. Prior to making this purchase, Mr. Roushion was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Roushion reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Roushion understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Roushion based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false or misleading. The GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications for the GTX 0. Attached hereto as Exhibit B is the product packaging for the EVGA GTX 0 devices, which is incorporated herein by reference. 0. On personal knowledge Plaintiff Kiloe Young is a citizen and resident of California. Mr. Young purchased an ASUS NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale in or about October 0, and paid $.. Prior to making this purchase, Mr. Young was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Young reviewed the product packaging or Defendants advertising prior to purchase as replicated below, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Young understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated

6 Case :-cv-000-crb Document 0 Filed // Page of 0 0 technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Young based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false or misleading. The GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications for the GTX 0. Attached hereto as Exhibit C is the product packaging for the ASUS GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Jason Doerrer is a citizen and resident of Missouri. Mr. Doerrer purchased a Gigabyte NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale on February, 0, and paid $.. Prior to making this purchase, Mr. Doerrer was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Doerrer reviewed NVIDIA s GTX 0 webpages on prior to purchase, which contained the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below, as well as reviewed the product packaging that confirmed the same material representations. Mr. Doerrer understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Doerrer based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false or misleading. The GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical

7 Case :-cv-000-crb Document 0 Filed // Page of 0 0 specifications for the GTX 0. Attached hereto as Exhibit A is the product packaging for the Gigabyte GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Pedro Santiago is a citizen and resident of Ponce, Puerto Rico. Mr. Santiago purchased an ASUS NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale in or about December 0 and paid $.. Prior to making this purchase, Mr. Santiago was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Santiago reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Santiago understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Santiago based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit C is the product packaging for the ASUS GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Kyle Ellis is a citizen and resident of Jenks, Oklahoma. Mr. Ellis purchased a PNY NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale in or about October 0, and paid $.. Prior to making this purchase, Mr. Ellis was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Ellis reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth

8 Case :-cv-000-crb Document 0 Filed // Page of 0 0 below. Mr. Ellis understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Ellis based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit E is the product packaging for the PNY GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Andy Torrales is a citizen and resident of Riverview, Florida. Mr. Torrales purchased an ASUS NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale on or about October 0, 0, and paid $.. Additionally, Mr. Torrales purchased another ASUS NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale on or about November, 0, and paid $.. Prior to making these purchases, Mr. Torrales was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Torrales reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Torrales understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Torrales based these purchase decisions in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing these purchase

9 Case :-cv-000-crb Document 0 Filed // Page of 0 0 decisions in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit C is the product packaging for the ASUS GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Dylan Jordan is a citizen and resident of Portsmouth, Virginia. Mr. Jordan purchased a Gigabyte NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale in or about October 0, and paid $.. Prior to making this purchase, Mr. Jordan was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Jordan reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Jordan understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Jordan based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit A is the product packaging for the Gigabyte GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Joseph Vorraso is a citizen and resident of Romeoville, Illinois. Mr. Vorraso purchased an ASUS NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale in or about November 0, and paid $.. Prior to making this purchase, Mr. Vorraso was exposed to and saw NVIDIA s claims regarding the technical specifications

10 Case :-cv-000-crb Document 0 Filed // Page 0 of 0 0 and performance characteristics of the GTX 0, as set forth below. Mr. Vorraso reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Vorraso understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Vorraso based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit C is the product packaging for the ASUS GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff David Dropski is a citizen and resident of Cresthill, Illinois. Mr. Dropski purchased one ASUS NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale on November, 0, and paid $.. Additionally, Mr. Dropski purchased another two ASUS NVIDIA GeForce GTX 0 GB graphics cards for personal purposes and not for resale on November, 0, and paid $0.. Prior to making these purchases, Mr. Dropski was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Dropski reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Dropski understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such 0

11 Case :-cv-000-crb Document 0 Filed // Page of 0 0 statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Dropski based these purchase decisions in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing these purchase decisions in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit C is the product packaging for the ASUS GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Austin Verlinden is a citizen and resident of Illinois. Mr. Verlinden purchased an MSI NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale in or about February of 0, and paid $.. Prior to making this purchase, Mr. Verlinden was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Verlinden reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Verlinden understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Verlinden based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false or misleading. The GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications for the GTX 0. Attached hereto as Exhibit D is the product packaging for the MSI GTX 0 devices, which is incorporated herein by reference.

12 Case :-cv-000-crb Document 0 Filed // Page of 0 0. On personal knowledge Plaintiff Stephen Denz is a citizen and resident of Rockdale, Milam County, Texas. Mr. Denz purchased an MSI NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale on or about February, 0, and paid approximately $.. Prior to making this purchase, Mr. Denz was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Denz reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Denz understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Denz based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false or misleading. The GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications for the GTX 0. Attached hereto as Exhibit D is the product packaging for the MSI GTX 0 devices, which is incorporated herein by reference. 0. On personal knowledge Plaintiff Joel Bernabel is a citizen and resident of New York. Mr. Bernabel purchased a PNY NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale in or about October of 0, and paid $.. Prior to making this purchase, Mr. Bernabel was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Bernabel reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Bernabel understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the

13 Case :-cv-000-crb Document 0 Filed // Page of 0 0 GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Bernabel based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false or misleading. The GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications for the GTX 0. Attached hereto as Exhibit E is the product packaging for the PNY GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Jan Paolo Jimenez is a citizen and resident of California. Mr. Jimenez purchased an EVGA NVIDIA GeForce GTX 0 GB graphics card for personal purposes and not for resale in or about January of 0, and paid $.. Prior to making this purchase, Mr. Jimenez was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Jimenez reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Jimenez understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Jimenez based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false or misleading. The GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications for the GTX 0. Attached hereto as

14 Case :-cv-000-crb Document 0 Filed // Page of 0 0 Exhibit B is the product packaging for the EVGA GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Timothy Farley is a citizen and resident of California. Mr. Farley purchased two Gigabyte NVIDIA GeForce GTX 0 GB graphics cards for personal purposes and not for resale on or about September, 0, and paid $. ($. each). Prior to making these purchases, Mr. Farley was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Farley reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Farley understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Farley based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit A is the product packaging for the Gigabyte GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Alexander Montgomery is a citizen and resident of California. Mr. Montgomery purchased an MSI NVIDIA GeForce GTX 0 GB graphics cards for personal purposes and not for resale on or about November 0, and paid $.. Prior to making this purchase, Mr. Montgomery was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Montgomery reviewed the product packaging or Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has a full GB of available GDDR memory and the other

15 Case :-cv-000-crb Document 0 Filed // Page of 0 0 technical specifications set forth below. Mr. Montgomery understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Montgomery based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit D is the product packaging for the MSI GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Ryan Brenek is a citizen and resident of East Lyme, Connecticut. Mr. Brenek purchased an ASUS NVIDIA GTX 0 GB for personal purposes and not for resale in or about January 0, paying approximately $.. Prior to making this purchase, Mr. Brenek was exposed to and saw NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Brenek reviewed the product packaging and Defendants advertising prior to purchase, which confirmed the material representation that the GTX 0 has available a full GB of available GDDR memory and the other technical specifications set forth below. Mr. Brenek understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0. Mr. Brenek based this purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing this purchase decision in that he would not have paid for the GTX 0 at the price he did, if at all, had he known the advertised specifications for the GTX 0 were false and misleading. However, the GTX 0 was

16 Case :-cv-000-crb Document 0 Filed // Page of 0 0 worth less than represented based on the material fact it did not possess nor operate consistent with NVIDIA s technical specifications. Attached hereto as Exhibit C is the product packaging for the ASUS GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Jorell Dye is a citizen and resident of the State of California. In or around December 0, Mr. Dye purchased two NVIDIA GeForce GTX 0 graphics cards, each for personal purposes and not for resale, and paid approximately $0 per device. Mr. Dye decided to purchase the GTX 0 graphics cards because he wanted high VRAM for use on his highresolution display. Prior to making this purchase, Mr. Dye researched the specifications of the GTX 0 cards and reviewed and was exposed to NVIDIA s claims regarding the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Dye understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0 cards. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0 cards. Mr. Dye based his purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing his purchase decision in that he would not have paid for the GTX 0 cards at the price he did, if at all, had he known that the advertised specifications were false or misleading. The GTX 0 cards were worth less than represented by Defendant based on the material fact that it did not possess nor operate consistent with the technical specifications represented by Defendant. Attached hereto as Exhibit F is the product packaging for the NVIDIA GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Chester Bailey is a citizen of North Carolina. On October, 0, Mr. Bailey purchased an EVGA GeForce GTX 0 GB DDR graphics card at a cost of $.0. Prior to making this purchase, Mr. Bailey researched the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Bailey understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0 cards. Accordingly, these representations and

17 Case :-cv-000-crb Document 0 Filed // Page of 0 0 warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0 cards. Mr. Bailey based his purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing his purchase decision in that he would not have paid for the GTX 0 cards at the price he did, if at all, had he known that the advertised specifications were false or misleading. The GTX 0 cards were worth less than represented by Defendant based on the material fact that it did not possess nor operate consistent with the technical specifications represented by Defendant. Attached hereto as Exhibit B is the product packaging for the EVGA GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Gukjin Chung is a citizen of Maryland. On November 0, 0, Plaintiff Chung purchased a Gigabyte G GTX 0 Gaming G DDR graphics card at a cost of $.. Prior to making this purchase, Mr. Chung researched the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Chung understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0 cards. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0 cards. Mr. Chung based his purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing his purchase decision in that he would not have paid for the GTX 0 cards at the price he did, if at all, had he known that the advertised specifications were false or misleading. The GTX 0 cards were worth less than represented by Defendant based on the material fact that it did not possess nor operate consistent with the technical specifications represented by Defendant. Attached hereto as Exhibit A is the product packaging for the Gigabyte GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Garret Giordano is a citizen of Colorado. On December, 0, Plaintiff Giordano purchased a Gigabyte GTX 0 G Gaming GB DDR

18 Case :-cv-000-crb Document 0 Filed // Page of 0 0 graphics card at a cost of $.. Prior to making this purchase, Mr. Giordano researched the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Giordano understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0 cards. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0 cards. Mr. Giordano based his purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing his purchase decision in that he would not have paid for the GTX 0 cards at the price he did, if at all, had he known that the advertised specifications were false or misleading. The GTX 0 cards were worth less than represented by Defendant based on the material fact that it did not possess nor operate consistent with the technical specifications represented by Defendant. Attached hereto as Exhibit A is the product packaging for the Gigabyte GTX 0 devices, which is incorporated herein by reference.. On personal knowledge Plaintiff Francis Palagano is a citizen of Pennsylvania and resides in Coatesville, Pennsylvania. Plaintiff Palagano purchased a Gigabyte GTX 0 in October 0 for $.. Prior to making this purchase, Mr. Palagano researched the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Palagano understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0 cards. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0 cards. Mr. Palagano based his purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing his purchase decision in that he would not have paid for the GTX 0 cards at the price he did, if at all, had he known that the advertised specifications were false or misleading. The GTX 0 cards were worth less than represented by Defendant based on the material fact that it did not possess nor operate consistent with the technical specifications represented

19 Case :-cv-000-crb Document 0 Filed // Page of 0 0 by Defendant. Attached hereto as Exhibit A is the product packaging for the Gigabyte GTX 0 devices, which is incorporated herein by reference. 0. On personal knowledge Plaintiff Patrick E. Parker is a citizen of Georgia. On October, 0, Mr. Parker purchased two ASUS Strix-GTX0-DC0C-GD GeForce GTX 0 GB - bit GDDR graphics cards at a cost of $.. Prior to making this purchase, Mr. Parker researched the technical specifications and performance characteristics of the GTX 0, as set forth below. Mr. Parker understood such statements to represent and warrant that the GTX 0 did in fact meet and operate consistent with NVIDIA s publicly stated technical specifications for the GTX 0 cards. Accordingly, these representations and warranties were material and part of the basis of his bargain in that he attributed value to these statements, and a reasonable person targeted by such statements would attach importance to the accuracy of such statements in deciding to purchase the GTX 0 cards. Mr. Parker based his purchase decision in substantial part on the accuracy of such representations, and such representations were a substantial factor in influencing his purchase decision in that he would not have paid for the GTX 0 cards at the price he did, if at all, had he known that the advertised specifications were false or misleading. The GTX 0 cards were worth less than represented by Defendant based on the material fact that it did not possess nor operate consistent with the technical specifications represented by Defendant. Attached hereto as Exhibit C is the product packaging for the ASUS GTX 0 devices, which is incorporated herein by reference.. Defendant NVIDIA Corporation is a corporation organized and existing under the laws of the State of Delaware and whose principal place of business and headquarters is at 0 San Tomas Expressway, Santa Clara, California 00. Defendant NVIDIA researched, designed, developed, tested, created the specifications for, and marketed the GTX 0 out of its offices, using its primary departments and employees, which are located in California. In addition, Defendant NVIDIA manufactures and ships its products, including the GTX 0, to OEMs, purchasers, resellers, and distributors in and from California, maintains a direct sales force in California, sells its products through retail outlets in California, creates and disseminates the specifications and advertisements for its products, including its website where it specifically discusses the specifications of the GTX 0, in and from California, and made all material decisions about the design, specifications, manufacturing,

20 Case :-cv-000-crb Document 0 Filed // Page 0 of 0 0 marketing, advertising, pricing, and selling of the GTX 0 in California. NVIDIA is a publicly-traded company with a market capitalization of $. billion, annual revenue of $. billion, and an annual EBITDA of $ million. The market for discrete stand alone graphics cards is a duopoly, which NVIDIA dominates. As of Q 0, NVIDIA captured.% of the market, while its competitor Advanced Micro Devices, Inc. ( AMD ) captured only.%.. Within the industry, it is customary for graphics card designers like NVIDIA to license their designs to major electronics manufacturers like Gigabyte, ASUS, EVGA, PNY, and MSI, who in turn press, package, and sell products such as Defendant NVIDIA s graphics cards. The rationale for this arrangement is that it is more cost-effective for Defendant NVIDIA to license its designs to major electronics manufacturers rather than to operate solely through its own production facilities (although NVIDIA does sell its own version of the GTX 0 as well). Nonetheless, each graphics card licensed to outside manufacturers must meet NVIDIA s specifications for the GTX 0. Accordingly, as is customary in the industry, there are Gigabyte-made GTX 0 cards, ASUS-made GTX 0 cards, EVGA-made GTX 0 cards, PNY-made GTX 0 cards, and MSI-made GTX 0 cards in addition to NVIDIA-made GTX 0 cards, each with virtually identical specifications and performance. Those specifications, design, manufacturing and performance standards were set by NVIDIA in California.. Defendant Gigabyte Global Business Corporation d/b/a Giga-Byte Technology Co. Ltd. is a corporation organized and existing under the laws of the State of California and whose principal place of business is located at Railroad Street, City of Industry, California. Gigabyte is engaged in the business of designing, manufacturing, selling, and distributing computer equipment, including graphics cards that incorporate and promote the inclusion of the GTX 0. Defendant Gigabyte ships products, including graphics cards that incorporate and promote the GTX 0, to direct purchasers and distributors in and from California, maintains a direct sales force in California, sells its products in retail outlets in California, and advertises and provides specifications for its products in and from California.. Defendant G.B.T. Inc. is a corporation incorporated in and existing under the laws of the State of California with its principal place of business located at Railroad Street, City of Industry, California. G.B.T. Inc. does business throughout the United States and the State of 0

21 Case :-cv-000-crb Document 0 Filed // Page of 0 0 California, including in this District, and is the parent company of Gigabyte Global Business Corporation.. Defendant ASUS Computer International is a California corporation with its principal place of business in Fremont, California. ASUS is a leading computer and electronics manufacturer. ASUS is engaged in the business of designing, manufacturing, selling, and distributing computer equipment, including graphics cards that incorporate and promote the inclusion of the GTX 0. Defendant ASUS ships products, including graphics cards that incorporate and promote the GTX 0, to direct purchasers and distributors in and from California, maintains a direct sales force in California, sells its products in retail outlets in California, and advertises and provides specifications for its products in and from California.. Defendant EVGA Corporation is a California corporation with its principal place of business at 00 Saturn Street, Brea, California. EVGA is a leading computer and electronics manufacturer. EVGA is engaged in the business of designing, manufacturing, selling, and distributing computer equipment, including graphics cards that incorporate and promote the inclusion of the GTX 0. Defendant EVGA ships products, including graphics cards that incorporate and promote the GTX 0, to direct purchasers and distributors in and from California, maintains a direct sales force in California, sells its products in retail outlets in California, and advertises and provides specifications for its products in and from California.. The true names, roles, and/or capacities of Defendants named as DOES through 0, inclusive, are currently unknown to Plaintiffs and, therefore, are named as Defendants under fictitious names. Plaintiffs will identify their true identities and their involvement in the wrongdoing at issue if and when they become known.. Whenever reference is made in this Complaint to any representation, act, omission, or transaction of Defendants, that allegation shall mean that Defendants did the act, omission, or transaction through its officers, directors, employees, agents, and/or representatives while they were acting within the actual or ostensible scope of their authority.. Each of the Defendants acted jointly to perpetrate the acts described herein. Each Defendant was involved in the creation and dissemination of the misleading marketing claims about the

22 Case :-cv-000-crb Document 0 Filed // Page of 0 0 GTX 0 and/or each Defendant was involved in or profited from the sales of these devices. Further, each Defendant concealed material facts concerning the truth about the GTX 0 s specifications by repeating the misrepresentations made by Defendant NVIDIA without disclosing the material facts as set forth below. At all times relevant to the allegations in this matter, each Defendant acted in concert with, with the knowledge and approval of, and/or as the agent of the other Defendants within the course and scope of the agency, regarding the acts and omissions alleged. FACTS The Role Of Graphics Cards In Modern Computers 0. By way of background, modern computers are best understood as a collection of specialized components, each of which has a defined task. A computer typically includes the following components: a CPU that processes instructions, memory for storage (e.g., RAM and a hard drive), a device for input from the user (e.g., a mouse or keyboard), output for the user (e.g., a monitor and speakers), and a control unit that coordinates the various components.. Building off this framework, when images are rendered for output on a display device like a computer monitor, they are arranged in a series of tiny dots called pixels. For example, the popular resolution 0x00 is arranged as a grid of pixels that number,0 in width and,00 in height, for a total of slightly over million pixels.. Each time the display changes through moving a mouse, opening a program, watching a movie, playing a computer game, or under the control of the program itself some or all of the pixels must be updated. For computer games and animation, the standard for fluid animation is a refresh rate of at least 0 frames per second ( FPS ). In the case of 0x00 resolution, up to million pixels may need to be updated 0 times per second or approximately 0 million pixel updates every second. While 0x00 has been a popular resolution for many years, the Ultra HD and K standards have recently gained popularity and are increasingly a focus of NVIDIA s marketing strategy, both on its website and on it product packaging (see, e.g., and Ex. F). Ultra HD has a resolution of 0x0, or about. million pixels, and K has a resolution of 0x0, or about. million pixels, which require even more processing power to fully display images at such resolutions. Even though 0 FPS has been a popular target frame rate for many years, monitors and display adapters that support 0 FPS and higher are now gaining prominence.

23 Case :-cv-000-crb Document 0 Filed // Page of 0 0. FPS is only one measure of video game performance. Another more accurate and realistic measurement of actual user gaming experience employed and promoted by NVIDIA is Frame Time or Frame Rate Analysis, which examines the difference or variance between the time it takes to display a frame compared to the ideal time it should take to display the frame based on the frames surrounding it. The purpose of this type of analysis is to document real world visual and game play quality defects, which manifest in dropped frames, micro stuttering, freezing, or choppy video performance. Even NVIDIA recognizes that many significant video game performance flaws are missed by using FPS alone. One popular program used to measure Frame Time Analysis and obtain such data is a program designed by NVIDIA called FCAT (Frame Capture Analysis Tool). This utility is used by NVIDIA internally to measure the real world performance or feel of an actual video game. NVIDIA s design team explains this distinction as follows on NVIDIA s website (see GPU performance is often calculated by running benchmark games and recording the average Frames Per Second (FPS) using FRAPS or a similar tool. Unfortunately, many significant performance implications can be missed by using this traditional method. What we have found is that the data reported by FRAPS does not match what you see on screen and feel in the game so, in 0, NVIDIA engineers began work on a way to examine GPU performance in far greater detail. These efforts resulted in the Frame Capture Analysis Tool, referred to as FCAT for short. Measuring performance as it s delivered on a monitor, FCAT identifies dropped frames, runt frames, micro-stuttering, and other problems that reduce the visible smoothness of the action on-screen, even when running at sixty frames per second and above as reported by FRAPS. This indepth examination of performance has enabled us to fine-tune our graphics hardware while in development, resulting in a GeForce GTX 00 Series of graphics cards, powered by NVIDIA Kepler architecture, that produces a smoother gaming experience than any previous NVIDIA GPU.. Rendering graphics is often computationally expensive. Historically, graphics were rendered with a computer s main CPU and RAM, which would update each pixel when necessary. The disadvantage of this methodology is that rendering graphics occupies these components, which are simultaneously executing the operating system, kernel, and numerous programs in user space. Commingling these tasks on the computer s main CPU and RAM may reduce the computer s performance system-wide, and the quality of graphics that can be displayed at an acceptable frame rate is fairly limited.

24 Case :-cv-000-crb Document 0 Filed // Page of. In or about, several companies (including NVIDIA) began marketing discrete stand alone graphics cards, which offload graphics rendering to a separate processor that is specifically engineered for this task. NVIDIA s NV, released in May, was one of the first commercial graphics card capable of D rendering and video acceleration. Over time, graphics cards evolved into miniature computers they have their own processor (a graphics processing unit, or GPU ), their own RAM, their own cooling system, and sometimes separate power regulators: 0. This same general architecture is now used in the GTX 0: 0

25 Case :-cv-000-crb Document 0 Filed // Page of. Graphics cards are plugged directly into the motherboard, typically using the PCI Express bus. Many graphics cards, including the GTX 0, allow users to use multiple cards at once for increased graphical performance with a method called Scalable Link Interface ( SLI ): 0 0. Consumers such as Plaintiffs and Class Members purchase graphics cards such as the GTX 0 to enhance graphics performance. The advantage of using discrete graphics cards is that the computer s main CPU and RAM are not occupied with rendering graphics, which improves performance system-wide. Such graphics cards are connected directly to a computer s motherboard and contain their own memory and processing units. Employing a discrete graphics card like the GTX 0 renders images much faster than the integrated graphics that come standard on desktop computer motherboards, as graphics cards such as the GTX 0 bypass integrated graphics, and generate their own images, thereby increasing overall system performance. Additionally, discrete graphics cards like the GTX 0 can render graphical output substantially faster than a computer s main CPU and RAM alone, given that they are specifically engineered for the task. Discrete graphics cards like the GTX 0 have a wide variety of uses in addition to gaming, including assisting with D animation and D applications, BitCoin mining, and high-speed parallel processing using the OpenCL and CUDA frameworks. Furthermore, modern graphics cards like the GTX 0 support a host of advanced graphical features for D applications that would not otherwise be feasible at acceptable frame rates using the CPU and RAM alone, including but not limited to anti-aliasing, anisotropic texture filtering, ambient occlusion, motion blur, tessellation, high-dynamic-range, high-resolution textures, detailed

26 Case :-cv-000-crb Document 0 Filed // Page of 0 0 shadows, and post processing, among others. Games with more of these features run at faster frame rates with a separate stand alone graphics card. Animation and D applications also will run faster with a separate stand alone graphics card.. The persons targeted by GPU manufacturers such as Defendants to purchase such devices are thus not ordinary consumers with a passing understanding of how a computer operates, nor are the types of GPUs at issue here (i.e., the GTX 0) commonly pre-installed in desktop computers. Rather, the GTX 0 devices are marketed to consumers who would be able to, and do, install graphics cards by themselves directly onto the computer motherboard. As a result, these consumers would have specific questions, understandings, and concerns about the precise technical specifications of the GPU devices, which is why the technical specifications in question are material to the consumers that are targeted by this industry to purchase such devices. 0. These devices increasingly need to access added bandwidth and memory, both due to the fast-growing complexity of modern video games and the increased resolution demand resulting from the growing use of K devices. Thus, representations about memory capacity in terms of having. GB versus GB VRAM and the ability to smoothly render action on K devices are material to purchasers of such devices. Indeed, having GB of VRAM is one of the primary technical characteristics advertised on product packaging and on-line product descriptions at the NVIDIA GTX 0 website and the link to on-line retailer sites such as Best Buy.com, Amazon.com, NewEgg.com, and B&H Photo.com.. Graphics cards are a booming industry, which is dominated as a duopoly by NVIDIA and AMD. Because of this duopoly, the speed of the processor and memory and the speed and method of access to RAM are material characteristics both companies focus on in differentiating their products and charging consumers a price premium for them. As a result, the larger the amount of RAM that can be promoted by companies such as NVIDIA and AMD as accessible when needed, the faster the GPU in theory will be able to operate, thus justifying a higher price point. Defendants Misrepresented The Specifications And Performance Of The GTX 0. Defendants began to distribute and sell the GTX 0 in August 0, at an average retail price of approximately $0. Since its inception, Defendants uniformly misrepresented or omitted

27 Case :-cv-000-crb Document 0 Filed // Page of 0 0 material facts in their sales and marketing materials regarding the technical specifications and performance of the GTX 0, including the GTX Reviewer s Guide referenced herein, NVIDIA s website, manufacturer and retailer websites, and on the product packaging and labeling, examples of which are attached hereto and incorporated herein by reference. Specifically, Defendants falsely and misleadingly represented that the GTX 0 has MB of L cache, ROPs, and GB of GDDR VRAM, with either the express or implied understanding that all of this GB of VRAM has the same access to the GTX 0 s memory system and is being accessed at the same speed. In actuality, as NVIDIA partially disclosed in late January 0, the GTX 0 has. MB of L cache, ROPs, and. GB of GDDR VRAM, with a separate pool of 0. GB VRAM that can only be accessed at as slow as one-seventh the speed of the other. GB of VRAM in the main pool.. As the following diagram illustrates, the GTX 0 is designed to operate differently when it accesses memory above. GB VRAM. There are eight separate 0. GB VRAM segments, seven of which have direct pathway connections. However, data from the eighth 0. GB VRAM segment is accessed through a portion of the same access path as data used by the seventh segment of the. GB VRAM pool. This significantly limits the ability to read and write from the seventh and eighth VRAM segments in parallel, drastically slowing down not only read and write access to data coming from the last 0. GB VRAM pool, but also from at least some if not all of the entire. GB VRAM pool. This design adversely impacts overall performance of the GTX 0 for its intended applications when more than. GB of VRAM needs to be accessed for applications processing and both segments seven and eight are attempting to access the same pathway: GDDR RAM (or double data rate type five synchronous graphics random access memory ) is a modern type of RAM with a high bandwidth interface used in graphics cards.

28 Case :-cv-000-crb Document 0 Filed // Page of 0 0. L cache is a form of extremely high-speed memory, which is typically located on a processor itself (as opposed to a block of RAM that is external to the processor). Since it is much faster than standard RAM, processors will attempt to pull data from the L cache first, and will only access the VRAM if the required data is unavailable in the L cache (a cache miss ). Thus, the size of L cache is directly correlated with GPU performance. If the L cache is larger, a processor can access data much faster on average, because it will need to access the RAM less frequently; if it is smaller (here, from.0mb to.mb), a processor can only access data at a slower rate.. ROPs are parallel processing cores that assist as one of the last steps in rendering video images on computer screens. The fillrate, or the maximum number of pixels that can be filled per second by the graphics card, is calculated by multiplying the number of ROPs by the clock frequency of the GPU. Thus, a smaller number of ROPs (here, from to ROPs) on a graphics card means that the card can render fewer pixels per second, further degrading performance.

29 Case :-cv-000-crb Document 0 Filed // Page of 0. Prior to the sale of the GTX 0, beginning at least in the summer of 0 if not earlier, Defendants distributed advance copies of the GTX 0 card to reviewers and trade publications, as is customary in the industry. Accompanying the sample graphics card was a GTX 0 Reviewer s Guide, created by NVIDIA, which contained specifications that were included by NVIDIA with the intention of such information being repeated and disseminated by media reviewers to the public. These specifications were provided to third-party product reviewers from NVIDIA s corporate offices in Santa Clara, California, whose reviews were also included on NVIDIA s website. This Guide misrepresented that the GTX 0 has MB of L cache (i.e.,,0 kilobytes of L cache), ROPs and GB GDDR video memory: 0 In turn, these precise specifications were widely repeated in the press, as NVIDIA intended.. It is an industry-wide practice for computer component companies like Defendants to give away new or soon to be released products to Professional Product Reviewers ( PPR ) (as mentioned above), who in turn review the product. These reviews require the PPR to disseminate all of the information they have been provided by the manufacturer, including specifications, capabilities, and characteristics. This information is often and in this case was provided in the Reviewer s Guide. It was reasonable for Plaintiffs and Class Members to rely on the accuracy of the statements and

30 Case :-cv-000-crb Document 0 Filed // Page 0 of representations made by Defendants, including, inter alia, those found in the Reviewer s Guide, NVIDIA s own website, and the product labeling and packaging.. Furthermore, NVIDIA on its interactive website that provides direct links for Class Members to purchase the GTX 0 from various retailers has, since at least August 0, represented that the GTX 0 has a Standard Memory Configuration of GB of VRAM, which has a Memory Bandwidth of (GB/sec): 0 0. NVIDIA s website also contains the following material statements, which for the reasons stated herein are untrue and misleading: The GeForce GTX 0 is a high-performance graphics card designed for serious gaming. To enhance games further we've developed Dynamic Super Resolution (DSR), which gives gamers k-quality graphics on a 00p or higher monitor. Compared to traditional downsampling, which requires compatible monitors, luck, and a high degree of technical knowledge, DSR produces a higher-quality image that can be instantly enabled with a single click in GeForce Experience, or by changing the resolution in-game. For gamers, K combined with NVIDIA s G-SYNC technology is the Holy Grail, delivering Ultra HD tear-free, super-smooth gameplay. The computing demands of K are high, however, requiring top-tier multi-gpu systems, until now that is. With Maxwell and the GeForce GTX 0, K G-SYNC is a reality thanks to Maxwell's technological innovations, its speed, and its GB of VRAM... The new GeForce GTX 0 is no slouch, either, powering the latest and greatest games at ultra detail levels and with maximum levels of anti-aliasing enabled: See 0

31 Case :-cv-000-crb Document 0 Filed // Page of 0 0 If you want the best experience, the fastest speeds, DirectX support, and image quality-enhancing features that just work, the new GeForce GTX 0 and GeForce GTX 0 are your best options. Product Info GeForce GTX 0 Supported Technologies G-SYNC K DSR Virtual Reality For each description of the GTX 0 contained at the link on NVIDIA s website for consumers to purchase such devices ( the descriptive title of the GTX 0 device either uses the representation GB or GB GDDR.

32 Case :-cv-000-crb Document 0 Filed // Page of 0. The GTX 0 is also prominently advertised on retailer sites such as Amazon and Newegg based on materials and technical information provided by Defendants (and has been since at least August 0). These websites describe the GTX 0 as having GB of VRAM, such as Gigantic GB 00 MHz GDDR memory, or listing the GTX 0 as having a Memory Size of GB. 0 Retailers incorporate the purported GB of VRAM into the very name of the product, such 0 as this title used by Newegg linked from NVIDIA s own website: ASUS STRIX-GTX0-DCOC- GD GeForce GTX 0 GB -Bit GDDR PCI Express.0 SLI Support G-SYNC Support Video Card (emphasis added). This GB memory claim is the primary advertised differentiating technical characteristic of the GTX 0 device from other devices, thus making it the material selling point for these devices Defendants intend consumers to focus on. This GB VRAM characteristic is input by NVIDIA and other Defendants directly into the retailer website title descriptions of these devices, such that these labeling representations are made by Defendants directly to consumers.. In addition to statements on NVIDIA s and retailers websites, much of the labeling and packaging of the GTX 0 since August 0 prominently states that the product has GB of memory. For example, the ASUS packaging for the GTX 0 specifically focuses on this characteristic, as do other companies (see Exs. A-F, which are incorporated herein by reference): 0 See Cards/dp/B00NJBJG. 0 See

33 Case :-cv-000-crb Document 0 Filed // Page of 0 0. NVIDIA also claims on its website and in advertising materials such as product packaging that the GTX 0 is designed and capable of performing in K (a High Definition standard above that of 0x00, also known as 00p). For example, on its website and GTX 0 product packaging, NVIDIA states one of the reasons consumers should purchase a GTX 0 is because it can provide K Quality graphics on a 00p or higher monitor, or that the GTX 0 delivers a K experience on a 00p display. Analysis:. NVIDIA claims on its website this ability has been confirmed by use of Frame Time To date, only GeForce GTX graphics cards are capable of smoothly rendering action at K in multi-gpu configurations, a fact pattern proven by the FCAT Frame Capture Analysis Tool, which has been adopted by leading press sites keen to show their readers exactly how a GPU performs, and whether the rendered action is smooth and stutter free. K revolutionizes the way you view your games by adding four times as many pixels as commonly used in 0x00 screens, opening your eyes to rich, superbly-detailed worlds.. In contrast to Defendants uniform representations, the GTX 0 does not provide these advertised specifications in actual use. In fact, the GTX 0 has only. MB of L cache, and ROPs, which have an impact on reaching its advertised capabilities and the overall performance of the GTX 0. Additionally, the purported GB of VRAM is actually divided into two pools: a main pool of. GB memory, and a smaller partition of 0. GB memory that operates at a reduced speed as slow as one-seventh the speed of the. GB pool once the first. GB has been exhausted. As a result, when users seek to access the advertised GB of memory in gaming or other usage, once the. GB threshold is reached, actual video performance materially degrades.. Such degradation is accurately demonstrated in examples of micro-stuttering and freezing, as captured in Frame Time Analysis (since as stated above, FPS does not capture such flaws). Myriad public complaints, articles, YouTube videos and even postings on NVIDIA s forums show consistent evidence of freezing and micro-stuttering and a higher degree of variance at higher

34 Case :-cv-000-crb Document 0 Filed // Page of 0 0 resolutions and VRAM usage in GTX 0 performance, particularly when compared to the GTX 0, that is captured by Frame Time Analysis (see, e.g., While micro-stuttering may be less noticeable at 00p resolution with low to mid-range game settings, NVIDIA advertised the GTX 0 as a high-end, future proof gaming card capable of playing today s and tomorrow s games at higher resolution and performance settings. These newest video games can easily exceed the GTX 0 s. GB of full speed memory by enabling VRAM-intensive features like higher resolutions, anti-aliasing, and high-resolution texture packs. When these common features are enabled, complaints of micro-stuttering or freezing significantly increase. Thus, as NVIDIA has indicated it uses FCAT to fine tune its graphics hardware, it was likely aware prior to release of the GTX 0 devices that when video games accessed memory above. GB, real world game performance was materially degraded. Yet Defendants did not disclose this material fact to consumers, or admit that any reports of such degraded performance were attributable in significant part to the design of the GTX 0.. Benchmarking of the GTX 0 s VRAM and L cache also shows marked slowdown in performance even at. GB, especially when compared with a companion NVIDIA graphics card, the GTX 0. See Ex. G, which is incorporated herein by reference. As this benchmarking chart is explained by on-line technology publication ExtremeTech: performance is constant between both cards until you hit the end of the memory pool in both cases. When the GTX 0 hits the.gib mark, performance craters, falling to less than 0% of its initial rating in some cases. The GTX 0, in contrast, maintains full bandwidth across the entire GPU GB/s for DRAM and GB/s for L cache.. This is therefore not a technical glitch. From a practical standpoint this means that when consumers use the GTX 0 and when up to GB of VRAM is needed, once the. GB threshold is reached, program performance will degrade, slow down, and stutter as the graphics card is not capable of operating as a true GB card. Even if the GTX 0 can technically reach a threshold to be classified as being able to operate on K devices, it is generally incapable of performing at a level that would

35 Case :-cv-000-crb Document 0 Filed // Page of 0 0 meet the expectations of a reasonable consumer of this type of product, in part, due to the microstuttering, chopping, and distorting of images at such high resolutions.. That the GTX 0 cannot perform as advertised affects the reasonable expectations of the typical purchaser, including Plaintiffs and Class Members, because it is not a future-proof card as reasonably expected. Due to the fragmented nature of the GTX 0 s chip architecture and its resulting non-conforming performance when compared to other GPUs that utilize a single pool of GB of VRAM, the GTX 0 is generally incapable of a reasonably consistent output at K resolution without experiencing performance problems, including freezing, stuttering, chopping, and distortion. Plaintiffs and Class Members may need to purchase a new GPU in order to meet this quickly adopting standard, despite having already been misled into believing that the GTX 0 was capable of performing at the K level. Various third party sites have demonstrated a material degradation as resolution increases to below 0 FPS, which is considered unacceptable by industry standards, and would render the GTX 0 essentially non-performing at such higher resolutions. See, e.g., Consumers have repeatedly complained about degraded performance above. GB, including noticeable video stuttering, and image tearing wherein the GTX 0 shows multiple images in a single distorted frame. Consumers on third-party manufacturer forums, such as EVGA, report significant video stuttering and video freezing lasting two to three seconds at these high performance levels. 0. Side-by-side benchmark studies confirm that the. GB pool of VRAM operates at gigabits per second, while the 0. GB pool operates as slow as at gigabits per second. Stated otherwise, the last 0. GB partition operates up to. times slower than the. GB pool once the. GB partition has been exhausted. Compensating for this demonstrated loss in performance, some games have been designed to recognize the GTX 0 as only operating as a. GB GPU card and automatically downgrade performance based on the design of the GTX 0.. NVIDIA failed to disclose the GTX 0 s true specifications, despite having evidence to the contrary in its exclusive possession and control, and its impact in performance at high usage levels before the card s release for sale. NVIDIA s material misstatements and omissions about the GTX 0

36 Case :-cv-000-crb Document 0 Filed // Page of 0 0 would be likely to, and did, mislead reasonable consumers who are targeted by Defendants to purchase these products.. NVIDIA employees have publicly admitted the inaccuracy of these technical specifications, and further admit NVIDIA committed error. These facts first began to come to light on or about January, 0, when NVIDIA s Senior VP of GPU Engineering, Jonah Alben, admitted that, while the GTX 0 might (according to NVIDIA) technically feature GB of VRAM, the final MB operates at a far slower rate than the first. GB due to what NVIDIA has conceded is reduced bandwidth. As Mr. Alben conceded, once the last 0. GB partition of VRAM is accessed the GTX 0 does not fully function as if it has a full GB of GDDR VRAM, which was and is a key selling point for the device: [V]arious GTX 0 owners had observed that the GTX 0 was prone to topping out its reported VRAM allocation at.gb rather than GB, and that meanwhile the [more expensive] GTX 0 was reaching GB allocated in similar circumstances. This unusual outcome was at odds with what we know about the cards and the underlying GM0 GPU, as NVIDIA s specifications state that the GTX 0 and GTX 0 have identical memory configurations: GB of GHz GDDR on a -bit bus, split amongst ROP/memory controller partitions. In other words, there was no known reason that the GTX 0 and GTX 0 should be behaving differently when it comes to memory allocation. Since then there has been some further investigation into the matter using various tools written in CUDA in order to try to systematically confirm this phenomena and to pinpoint what is going on. Those tests seemingly confirm the issue the GTX 0 has something unusual going on after.gb VRAM allocation. Despite the outward appearance of identical memory subsystems, there is an important difference here that makes a MB partition of VRAM less performant or otherwise decoupled from the other.gb.

37 Case :-cv-000-crb Document 0 Filed // Page of 0 0. Mr. Alben also admitted that the GTX 0 does not have ROPs as advertised, but rather ROPs, and further, the L cache was not the,0 KB as advertised, but rather was only, KB.. These undisclosed limitations are not unintended technical glitches, but part of a purposeful design decision NVIDIA made before releasing the GTX 0. As Mr. Alben claims, the GTX 0 is working exactly as we designed it, although according to NVIDIA, it screwed up in publicly communicating the card s specifications.. NVIDIA employee PeterS in Santa Clara also admitted NVIDIA s error. On January, 0, responding to a GTX 0.GB VRAM Issue online discussion, he wrote: I totally get why so many people are upset. We messed up some of the stats on the reviewer kit and we didn t properly explain the memory architecture. I realize a lot of you guys rely on product reviews to make purchase decisions and we let you down. On the same page, a consumer writes NVIDIA is deleting posts regarding this issue.. Another NVIDIA employee within the company s social and online media segment wrote at approximately the same time: our communication as a company has clearly been problematic. I get it. I understand why GTX 0 owners are upset. We posted stats. We didn t properly explain the memory architecture. We messed up. We never intended to deceive anyone but despite our best intentions many of you got information that you thought you could trust and made decisions based on that and we let you down. We screwed up.. On February, 0, Mr. Jen-Hsun Huang, the CEO of NVIDIA, admitted the serious flaws in the marketing and promotion of the GTX 0: Some of you are disappointed that we didn t clearly describe the segmented memory of GeForce GTX 0 when we launched it. I can see why, so let me address it GTX 0 is a GB card. However, the upper MB of the additional GB is segmented and has reduced bandwidth. This is a good design because we were able to add an additional GB for GTX 0 and our software engineers can keep less frequently used data in the MB segment. Unfortunately, we failed to communicate this internally to our marketing team, and externally to reviewers at launch. Instead of being excited that we invented a way to increase memory of the GTX 0 from GB to GB, some were disappointed that we didn t better describe the segmented nature of the architecture for that last GB of memory.

38 Case :-cv-000-crb Document 0 Filed // Page of 0 0 This is understandable. But let me be clear: Our only intention was to create the best GPU for you. We wanted GTX 0 to have GB of memory, as games are using more memory than ever. This new feature of Maxwell should have been clearly detailed from the beginning. We won t let this happen again. We ll do a better job next time. (Emphasis added.). Knowledgeable consumers rejected this explanation. In an article entitled Nvidia CEO is Mocked for Explanation of GeForce GTX 0 Memory Issue, published by online magazine MaximumPC, consumers argued this explanation failed because the purported good design, in truth, decreases performance. This article goes on to explain this degradation due to design is further demonstrated by the companion card to the GTX 0 released at the same time, which has no problem accessing all GB of VRAM using the same video configurations.. Moreover, while Mr. Huang contends NVIDIA will do a better job next time, the issue is what Defendants are going to do about this issue now. Consumers spent several hundred dollars on GTX 0 devices hoping they would not be obsolete in the near term since, as Mr. Huang agrees, games are using more memory than ever. Yet they are not receiving what Defendants represented they would get and paid a premium for. 0. Despite these admissions, Defendants continue to advertise and market the GTX 0 on their websites and through third party retailers and repeat the misrepresentations at issue above. The GTX 0 is also still being promoted on product packaging as providing GB memory without disclosing the admitted inherent limitations in that representation at the same time. Nowhere in these sales and marketing materials, websites or on the product s packaging do Defendants disclose that the GTX 0 actually has a separate pool of VRAM that runs as slow as one-seventh the speed of the main pool when accessed and that, in the words of NVIDIA, has reduced bandwidth and is less performant than the other.gb segment. Instead consumers are led to believe the GTX 0 devices can access a single pool of GB RAM at a memory bandwidth of GB / sec, which because of its design and VRAM segmentation cannot be fully achieved. Consumers were also led to believe the GTX 0 has characteristics of MB of L cache and ROPs, which NVIDIA has also admitted is not true. Yet for persons targeted for purchase of this device, such specifications would be relevant.

39 Case :-cv-000-crb Document 0 Filed // Page of 0 0. Defendants failed to disclose the true specifications of the GTX 0, despite having evidence to the contrary in their exclusive possession and control prior to the public release of these devices. Coupled with their affirmative statements to the contrary, Defendants material omission that the GTX 0 actually does not perform and possess the characteristics as represented, would be likely to, and did, mislead reasonable consumers who would purchase these products targeted by Defendants. Defendants also were obligated to disclose such omitted material facts because the material omissions about the actual technical specifications and characteristics of the GTX 0 cards as set forth above were contrary to representations actually made by Defendants. These omissions were also of material facts Defendants were bound to disclose because they had exclusive knowledge of such facts not known to the public about the actual internal workings and design of the GTX 0, which was actively concealed, and because they made partial representations about these technical specifications and also suppressed material facts about the limitations in how the GTX 0 cards actually operated, as later admitted by NVIDIA s own CEO.. Defendants uniform conduct emanates from California. The primary design, development and marketing decisions related to the GTX 0 were all made in this State or emanated from this State. The design of the GTX 0 was developed and the description and performance product specifications for the GTX 0 were formulated and tested at NVIDIA s corporate headquarters and facilities in Santa Clara, California. Its design, testing, manufacturing, engineering and marketing departments are located in California and operate out of NVIDIA s California offices. NVIDIA s website, which contains representations about the material specifications at issue and allows consumers to link to retailer sites to purchase the GTX 0 cards, is maintained out of NVIDIA s California offices. Policies and decisions concerning how to market the GTX 0 card, how to describe the card on product packaging and its own and third party retailer websites, and about what to include on the product labelling and packaging, and in the reviewer s guide of technical specifications, were also made by NVIDIA employees located in California and emanated from California nationwide, as was and is the uniform handling of questions and corporate statements and clarifications regarding the specifications and performance of the GTX 0. A significant number of Class Members reside in California. As the alleged misconduct or injuries occurred in California and as the challenged conduct

40 Case :-cv-000-crb Document 0 Filed // Page 0 of 0 0 emanates from California, and as set forth above California is the state in which the unlawful conduct occurred, California law can properly be applied to the claims of all Class Members.. Because the above representations were uniformly included in advertisements, marketing, and sales presentations either created or disseminated by Defendants to the entire Class, a reasonable consumer targeted by Defendants who would purchase these products would be exposed to, induced to act and misled into believing the GTX 0 functioned using a full GB of GDDR VRAM, ROPs, and,0 KB of L cache, when that is not in fact the case. Defendants misrepresentations and omissions alleged herein are the type that would be material to typical product purchasers targeted by Defendants. A reasonable person interested in these types of devices and who has the ability to personally install these GPU devices in their own computers would attach importance to them and would be induced to act on such information in making purchase decisions. Evidence such as the substantial number of on-line complaints, technical articles, admissions by NVIDIA and the Change.org petition shows there is a likelihood that a significant number of reasonable product purchasers of such devices, exercising ordinary care, that would have been confounded, confused or mislead by such claims or the omitted material facts.. Defendants admitted misrepresentations and omissions are the type that would be material to typical purchasers targeted by NVIDIA, i.e., a reasonable person interested in these types of devices would attach importance to them and would be induced to act on such information in making purchase decisions. As they purchased these devices in substantial part on the false belief these devices would conform to advertised specifications, such claims were a substantial factor in the decision of Plaintiffs and other Class Members to do so. As a result of Defendants deceptive marketing scheme, Class Members were exposed to Defendants misleading representations in Defendants uniform marketing materials and purchased GTX 0 devices at the prices they did.. As the designers and/or manufacturers of the GTX 0, Defendants were in a unique position to know the exact specifications of their own product design and reasonably should have known about the accuracy (or inaccuracy) of such statements. Industry-leading designers and manufacturers of graphics cards, like Defendants, do not unwittingly mislabel the specifications of their own products. 0

41 Case :-cv-000-crb Document 0 Filed // Page of 0 0. Plaintiffs and the Class were sold products that do not perform or possess the capabilities advertised and represented, and Defendants profited handsomely as a result. As such, they should be provided appropriate relief, as all consumers who purchased a GTX 0 device have been injured in fact and lost money or property as a result of Defendants wrongful conduct, as they did not receive the full value of the product they paid for in terms of possessing the characteristics set forth above, yet paid a price premium for the GTX 0 devices. An equivalent graphics card with a true GB of GDDR from NVIDIA s primary competitor, AMD, sells for under $0. CLASS ACTION ALLEGATIONS. Plaintiffs seek to represent a class defined as all persons in the United States (including its states, districts or territories) who purchased a GTX 0 graphics card (the Class ). Excluded from the Class are the following: a. All judicial officers in the United States and their families through the third degree of relationship; b. Defendants and any of their officers, directors, and employees, and any person or entity who has already settled or otherwise compromised similar claims against a defendant and provided a full release; c. Plaintiffs counsel, anyone working at the direction of Plaintiffs counsel, and/or any of their immediate family members; and d. Anyone who has pending against a named Defendant on the date of the Court s final certification order any individual action wherein the recovery sought is based in whole or in part on the type of claims asserted herein.. This action is brought and may properly be maintained as a class action pursuant to Federal Rules of Civil Procedure (b)(), (b)(), and (c)(). This action satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of these rules. 0 was a banner profit year for NVIDIA. According to published reports revenue grew percent to $. billion. In fact, [r]evenue increased percent year over year to a record $. billion for the quarter. NVIDIA s Chief Financial Officer noted that [g]rowth was driven by the full quarter availability of our Maxwell GeForce GPUs for gaming and by strength in accelerated computing GPUs. In other words, NVIDIA s record profits in 0 were driven in part by the sale of the company s flagship GTX 0 GPUs.

42 Case :-cv-000-crb Document 0 Filed // Page of 0 0. The Class is so numerous that individual joinder of all members is impracticable. While the exact number of Class Members is currently unknown and can only be ascertained through appropriate discovery, Plaintiffs believe that the Class includes tens of thousands of individuals. 0. Common legal and factual questions exist and predominate over any questions affecting only individual Class Members. These common questions, which do not vary among Class Members and which may be determined without reference to any Class Member s individual circumstances, include, but are not limited to: a. Whether Defendants representations regarding the GTX 0 as set forth above were false and misleading or reasonably likely to deceive customers targeted by such statements; b. Whether Defendants had adequate substantiation for their claims prior to making them; c. Whether Defendants failure to disclose that the GTX 0 did not perform as advertised and represented was material and would be likely to mislead a reasonable consumer and whether Defendants had a duty to disclose such material facts as exclusively known by them; d. Whether the GTX 0 performs as advertised and represented; e. Whether Defendants charged a price premium for the GTX 0 devices and the extent of that premium; f. Whether Defendants engaged in unfair, unlawful, and/or deceptive business practices regarding the GTX 0 in violation of Cal. Bus. & Prof. Code 00; g. Whether Defendants represented, through their words or conduct, that the GTX 0 possessed specific characteristics or benefits that it did not actually have in violation of Cal. Bus. & Prof. Code 00, et seq. and 00, et seq., Cal. Civ. Code 0, et seq., and the other state consumer protection laws referred to herein; h. Whether Defendants breached applicable express and implied warranties; i. Whether California or other state laws should apply to adjudicate such claims; and j. Whether Plaintiffs and the Class have been injured by the wrongs complained of herein, and if so, whether Plaintiffs and the Class are entitled to damages, injunctive and/or

43 Case :-cv-000-crb Document 0 Filed // Page of 0 0 other equitable relief, including restitution or disgorgement, and if so, the nature and amount of such relief.. As set forth in their specific factual allegations detailed above, Plaintiffs claims are typical of the Class Members claims. Defendants common course of conduct caused Plaintiffs and all Class Members the same harm. Likewise, Plaintiffs and other Class Members can prove the same common nucleus of operative facts in order to establish the same claims.. Plaintiffs are adequate Class representatives because they are members of the Class they seek to represent and their interests do not irreconcilably conflict with other Class Members interests. Plaintiffs have retained counsel competent and experienced in consumer protection class actions, and Plaintiffs and their counsel intend to prosecute this action vigorously for the Class benefit. Plaintiffs and their counsel will fairly and adequately protect the Class Members interests.. The Class may be properly maintained under Rule (b)(). Defendants have acted or refused to act, with respect to some or all issues presented in this Complaint, on grounds generally applicable to the Class, thereby making appropriate final injunctive relief with respect to the Class as a whole.. The Class can be properly maintained under Rule (b)() and (c)(). A class action is superior to other available methods for the fair and efficient adjudication of this litigation because individual litigation of each Class Member s claim is impracticable. Even if each Class Member could afford to bring individual actions, the court system could not. It would be unduly burdensome for thousands of individual cases to proceed. Individual litigation also presents the potential for inconsistent or contradictory judgments, and the risk of an inequitable allocation of recovery among those with equally meritorious claims. Individual litigation would increase the expense and delay to all parties and the courts because it requires individual resolution of common legal and factual questions. By contrast, the class action device presents far fewer management difficulties and provides the benefit of a single adjudication, economies of scale, and comprehensive supervision by a single court as to some or all of the issues raised by this action.. Plaintiffs reserve the right to modify this Class definition as appropriate and as circumstances warrant, or to request the Class be divided into sub-classes that are treated as a class of

44 Case :-cv-000-crb Document 0 Filed // Page of 0 0 residents from particular states including the residences of the various Plaintiffs, pursuant to Rule (c)(). COUNT I Violation Of The Magnuson-Moss Warranty Act ( MMWA ), U.S.C. 0, et seq.. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiffs bring this claim individually and on behalf of the members of the proposed Class against all Defendants.. The GTX 0 is a consumer product as defined in U.S.C. 0().. Plaintiffs and the Class Members are consumers as defined in U.S.C. 0(). 00. Defendants are suppliers and warrantors as defined in U.S.C. 0() and (). 0. In connection with the sale of the GTX 0, Defendants issued written warranties as defined in U.S.C. 0(), by making express warranties that the GTX 0 had (i) MB of L cache, (ii) ROPs, and (iii) GB of VRAM. 0. The GTX 0 does not conform to the express warranties because each of the express warranties is false and misleading. In fact, at the time such statements were made, the GTX 0 has only. MB of L cache, and ROPs. Additionally, the purported GB of VRAM is actually divided into two pools: a main pool of. GB, and a smaller separated segment of 0. GB that when accessed can operate as slow as one-seventh the speed of the. GB segment ( GB per second, versus GB per second), and which when accessed reduces the GTX 0 s overall performance. 0. Defendants also violated the Magnuson-Moss Warranty Act by breaching the express and implied warranties, as discussed below. 0. Plaintiffs and the Class Members were injured as a direct and proximate result of Defendants breach because the graphics card they received was worth substantially less than the card they were promised and expected. Notice of such claims was provided to Defendants prior to filing this action, but was ignored or refused.

45 Case :-cv-000-crb Document 0 Filed // Page of By reason of Defendants breaches of warranty, Defendants violated the statutory rights due Plaintiffs and the Class Members pursuant to the Magnuson-Moss Warranty Act, U.S.C. 0, et seq., thereby damaging Plaintiffs and the Class Members, and entitling them to the relief provided under that statute. COUNT II Breach Of Express Warranty 0. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 0. Plaintiffs bring this claim individually and on behalf of the members of the proposed Class against all Defendants. 0. Defendants, as the designer, manufacturer, marketer, distributor, and/or seller of the GTX 0 devices, expressly warranted through their advertising, labeling and product packaging such as set forth above and incorporated herein that the GTX 0 had (i) MB of L cache, (ii) ROPs, and (iii) GB of VRAM. These are specifically detailed and objective affirmations of facts that relate to the performance of the GTX 0, such as the ability to perform specific functions without major interruption when operating at above. GB of memory. According to Defendants, the GTX 0 operates in this manner based on how it was designed. Such statements constitute a performance specification based on the design of the GTX 0, which forms the substance of an express warranty provided directly by Defendants to Plaintiffs and Class Members, and forms part of the basis of the bargain between the parties. 0. In fact, at the time such warranties were made, Defendants breached such warranties as the GTX 0 has only. MB of L cache, and ROPs. Additionally, the purported GB of VRAM is actually divided into two pools: a main pool of. GB, and a smaller segment of 0. GB that when accessed runs as slow as one-seventh the speed of the. GB pool ( GB per second, versus GB per second), which adversely impacts the GTX 0 s overall performance and thereby fails to perform at the level of its advertised functions. 0. Defendants sold GTX 0 cards directly to consumers through their websites by linking directly from their websites to retailer sites for the purchase of these products. In addition, to the extent

46 Case :-cv-000-crb Document 0 Filed // Page of 0 0 any of the GTX 0 cards were purchased from authorized retailers, the sellers of these goods were not intended to be the ultimate consumers of the GTX 0 and were merely a pass-through entity. Plaintiffs and the Class Members were the intended, ultimate consumers of the GTX 0. As such, the warranty agreements applicable to the GTX 0, whether express or implied, to the extent not directly provided by Defendants to Plaintiffs and Class Members were designed for and made expressly for the benefit of the ultimate consumers only (i.e., Plaintiffs and the Class). Thus, as any warranty agreements accompanying the GTX 0 cards were intended to benefit the ultimate consumers and not the retailers, and Plaintiffs and Class Members are the intended beneficiaries of such warranties, they are the intended third-party beneficiaries of any contracts between Defendants and any retailers for the sale of such products.. All conditions precedent to seeking liability under claims for breach of express or implied warranty have been performed by or on behalf of Plaintiffs and others in terms of paying for the goods at issue. Defendants have been placed on reasonable notice of these breaches of warranties, having had an opportunity to cure these issues for Plaintiffs and all Class Members and provide compensation prior to asserting this claim in this action. In response, Defendants have failed to repair or replace the GTX 0 devices, voluntarily offer to take any remedial measures, or otherwise provide appropriate relief at no cost to Plaintiff and Class Members prior to the assertion of this claim in this action.. As a direct and proximate cause of Defendants breach of express warranty, Plaintiffs and Class Members have been injured and harmed because such claims were a substantial and material factor in their purchase decision and/or the graphics card they received was worth substantially less than the card they were promised and reasonably expected. COUNT III Breach Of Implied Warranty Of Merchantability. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiffs bring this claim individually and on behalf of the members of the proposed Class against all Defendants.

47 Case :-cv-000-crb Document 0 Filed // Page of 0 0. Defendants, as the designer, manufacturer, marketer, distributor, and/or seller of the GTX 0, impliedly warranted that the GTX 0 had (i) MB of L cache, (ii) ROPs, and (iii) GB of VRAM. In fact, at the time of sale the GTX 0 had only. MB of L cache, and ROPs. Additionally, the purported GB of VRAM is actually divided into two pools: a main pool of. GB, and a smaller segment of 0. GB that when accessed runs as slow as one-seventh the speed of the. GB pool ( GB per second, versus GB per second), which adversely impacts the GTX 0 s overall performance.. Defendants breached the implied warranty of merchantability, which by law (including, inter alia, the California Song-Beverly Warranty Act) is provided for the exclusive benefit of consumers in all agreements for the sale of the GTX 0, because it could not pass without objection in the trade under the contract description, the goods were not of fair average quality within the description, the goods were not adequately contained, packaged, and labeled as the agreement may require, and the goods did not conform to the promise or affirmations of fact made on the container or label. As a result, Plaintiffs and Class Members did not receive goods as impliedly warranted by Defendants to be merchantable.. Plaintiffs and Class Members purchased the GTX 0 based in substantial part upon Defendants skill and judgment in properly packaging and labeling the GTX 0.. The GTX 0 was not altered by Plaintiffs or Class Members.. The GTX 0 did not conform to these implied warranties when it left the exclusive control of Defendants. 0. Defendants should have been aware that the GTX 0 would be purchased and used without additional testing by Plaintiffs and Class Members.. The GTX 0 was unfit for its intended purpose, and Plaintiffs and Class Members did not receive the goods as warranted.. All conditions precedent to seeking liability have been performed by or on behalf of Plaintiffs and others in terms of paying for the goods at issue and Defendants having been placed on reasonable notice of these breaches of warranties, and having had an opportunity to cure the issue for Plaintiffs and all Class Members and provide notice and compensation to them prior to asserting this

48 Case :-cv-000-crb Document 0 Filed // Page of 0 0 claim in this action. Defendants have failed to repair or replace the GTX 0 devices, voluntarily offer to take any remedial measures, or otherwise provide appropriate relief at no cost to Plaintiff and Class Members.. As a direct and proximate cause of Defendants breaches of implied warranties, Plaintiffs and Class Members have been injured and harmed because the graphics card they received was worth substantially less than the card they were promised and expected. COUNT IV Common Counts / Assumpsit / Unjust Enrichment. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiffs bring this claim individually and on behalf of the members of the proposed Class against all Defendants as an alternative to their claims for breach of warranty to the extent the Court or jury finds there is no Count that asserts a claim for breach of an express enforceable, binding contractual relationship between the parties defining their rights and obligations.. As Plaintiffs and the Class Members show just grounds for recovering money to pay for benefits Defendant received from them, they have a right to restitution at law through an action derived from the common-law writ of assumpsit by implying a contract at law, or a quasi-contract as an alternative to a claim for breach of contract.. Plaintiffs and Class Members conferred benefits on Defendants by purchasing the GTX 0.. Defendants have been unjustly enriched in retaining the revenues or profits derived from Plaintiffs and Class Members purchases of the GTX 0. Retention of those moneys under these circumstances is unjust and inequitable because Defendants misrepresented that the GTX 0 had (i) MB of L cache, (ii) ROPs, and (iii) GB of VRAM. In fact, the GTX 0 has only. MB of L cache, and ROPs. Additionally, the purported GB of VRAM is actually divided into two pools: a main pool of. GB, and a smaller segment of 0. GB that runs when accessed as slow as oneseventh the speed of the. GB pool ( GB per second, versus GB per second), which adversely affects the GTX 0 s overall performance.

49 Case :-cv-000-crb Document 0 Filed // Page of 0 0. An entity that has been unjustly enriched at the expense of another is required to make restitution to the other. Under common law principles recognized in claims of common counts, assumpsit, and quasi-contract, as well as unjust enrichment, under the circumstances alleged herein it would be inequitable for Defendants to retain such benefits without paying restitution or damages therefor. Defendants should not be permitted to retain the benefits conferred via payments to be received from and/or paid by Plaintiffs and Class Members as a result of such transactions, and other remedies and claims may not permit them to obtain such relief, leaving them without an adequate remedy at law. 0. Because Defendants retention of the non-gratuitous benefits conferred on them by Plaintiffs and Class Members is unjust and inequitable, Defendants must pay restitution to Plaintiffs and Class Members for their unjust enrichment, as ordered by the Court. COUNT V Violation Of California s Consumers Legal Remedies Act ( CLRA ), California Civil Code 0, et seq.. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiffs bring this claim individually and on behalf of the members of the proposed Class against all Defendants.. California s Consumers Legal Remedies Act, Cal. Civ. Code 0(a)(), prohibits [r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have.. California s Consumers Legal Remedies Act, Cal. Civ. Code 0(a)(), prohibits [r]epresenting that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another.. California s Consumers Legal Remedies Act, Cal. Civ. Code 0(a)(), prohibits [r]epresenting that a transaction confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law.

50 Case :-cv-000-crb Document 0 Filed // Page 0 of 0 0. California s Consumers Legal Remedies Act, Cal. Civ. Code 0(a)(), prohibits [r]epresenting that the subject of a transaction has been supplied in accordance with a previous representation when it has not.. Defendants violated these provisions by misrepresenting that the GTX 0 had (i) MB of L cache, (ii) ROPs, and (iii) GB of VRAM, or omitting material facts to the contrary. In fact, the GTX 0 has only. MB of L cache, and ROPs and omitting material facts to the contrary. Additionally, the purported GB of VRAM is actually divided into two pools: a main pool of. GB, and a smaller segment of 0. GB that when accessed runs as slow as one-seventh the speed of the. GB pool ( GB per second, versus GB per second), which adversely affects the GTX 0 s overall performance.. Plaintiffs and the Class suffered damage caused by Defendants because it can be reasonably presumed based on the materiality of the misrepresentations and omitted facts at issue herein and as advertised as set forth above that Plaintiffs and Class Members would not have purchased the GTX 0 at the prices that they did if the true facts about the product had been disclosed, and the graphics card they received was worth substantially less than the card they were promised and expected.. More than 0 days prior to filing the First Amended Consolidated Class Action Complaint including this Count, CLRA notice letters were served on Defendants that complied in all respects with California Civil Code (a). Defendants failed to provide the relief required under the CLRA as requested in Plaintiffs letters. 0. Wherefore, Plaintiffs seek damages, restitution, injunctive relief, costs and attorneys fees for this violation of the CLRA. COUNT VI Violation Of California s Unfair Competition Law ( UCL ), California Business & Professions Code 00, et seq.. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiffs bring this claim individually and on behalf of the members of the proposed Class against all Defendants. 0

51 Case :-cv-000-crb Document 0 Filed // Page of 0 0. As the wrongful conduct that forms the basis for these claims and gives rise to Defendants liability took place in California, Defendants are subject to California s Unfair Competition Law, Cal. Bus. & Prof. Code 00, et seq. as to all Class Members. The UCL provides, in pertinent part: Unfair competition shall mean and include unlawful, unfair or fraudulent business practices and unfair, deceptive, untrue or misleading advertising.. Defendants misrepresentations and other conduct, described herein, violated the unlawful prong of the UCL by violating the Magnuson-Moss Warranty Act, the FAL, the CLRA, and express and implied warranties, as described herein.. Defendants misrepresentations and other conduct, described herein, violated the unfair prong of the UCL in that their conduct is substantially injurious to consumers, offends public policy, and is immoral, unethical, oppressive, and unscrupulous, as the gravity of the conduct outweighs any alleged benefits.. Defendants violated the fraudulent or deceptive prong of the UCL by making misrepresentations and omitting material facts about the GTX 0, as described herein, that were likely to deceive consumers targeted by and exposed to such claims.. Plaintiffs were injured in fact and lost money or property as a result of Defendants UCL violations because, as set forth in detail above, they acted in positive response to Defendants claims and would not have purchased the GTX 0 at the prices that they did if the material facts at issue herein had been timely and fully disclosed and/or the graphics card they received was worth substantially less than the card they were promised and expected. Plaintiffs and the Class Members are thus entitled to equitable monetary and injunctive relief. COUNT VII Violation Of California s False Advertising Law ( FAL ), California Business & Professions Code 00, et seq.. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiffs bring this claim individually and on behalf of the members of the proposed Class against all Defendants.

52 Case :-cv-000-crb Document 0 Filed // Page of California s False Advertising Law, Cal. Bus. & Prof. Code 00, et seq., makes it unlawful for any person to make or disseminate or cause to be made or disseminated before the public in this state, or to make or disseminate or cause to be made or disseminated from this state before the public in any state,... in any advertising device... or in any other manner or means whatever, including over the Internet, any statement, concerning... personal property or services, professional or otherwise, or performance or disposition thereof, which is untrue or misleading and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading. The advertisements in question were disseminated from California, either in terms of the statements on NVIDIA s website (either directly or placed on retailers websites) or on GTX 0 product packaging.. Defendants committed acts of false or misleading advertising, as defined by 00, by misrepresenting that the GTX 0 had (i) MB of L cache, (ii) ROPs, and (iii) GB of GDDR VRAM. In fact, the GTX 0 has only. MB of L cache, and ROPs, or omitting material facts to the contrary. Additionally, the purported GB of VRAM is actually divided into two pools: a main pool of. GB, and a smaller segment of 0. GB that when accessed runs as slow as one-seventh the speed of the. GB pool ( GB per second, versus GB per second), which adversely impacts the GTX 0 s overall performance.. Defendants either were aware, based on their admissions set forth above, or should have known through the exercise of reasonable care, that their representations and omissions of material facts about the GTX 0 were untrue or misleading.. Defendants actions were untrue or misleading in that the general public targeted by Defendants to act upon such advertisements were likely to be deceived.. Plaintiffs were injured in fact and lost money or property as a result of Defendants FAL violations because they would not have purchased the GTX 0 at the prices that they did if the true facts about the GTX 0 cards had been fully and timely disclosed, and the graphics card they received was worth substantially less than the card they were promised and expected. Plaintiffs and the Class Members are thus entitled to equitable monetary and injunctive relief.

53 Case :-cv-000-crb Document 0 Filed // Page of 0 0 COUNT VIII Negligent Misrepresentation. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiffs bring this claim individually and on behalf of the members of the Class against all Defendants.. As discussed above, Defendants misrepresented material facts that the GTX 0 had (i) MB of L cache, (ii) ROPs, and (iii) GB of GDDR VRAM. In fact, the GTX 0 has only. MB of L cache, and ROPs. Additionally, the purported GB of VRAM is actually divided into two pools: a main pool of. GB, and a smaller segment of 0. GB that when accessed runs as slow as one-seventh the speed of the. GB pool ( GB per second, versus GB per second), which adversely impacts the GTX 0 s overall performance.. At the time Defendants made these representations, Defendants reasonably should have known that these representations were false or made them without knowledge of their truth or veracity.. Defendants thus negligently misrepresented material facts about the GTX The negligent misrepresentations made by Defendants, upon which Plaintiffs and Class Members presumably reasonably and justifiably relied based on the materiality of such claims, were intended to induce and actually induced Plaintiffs and Class Members to purchase the GTX 0.. Plaintiffs and class members would not rationally anticipate that in entering into the subject transactions, they are or could be lied to by Defendants. Defendants' misrepresentations of material facts as set forth above relating to the technical specifications of the GTX 0 devices thus are independent of any breach of any applicable contract or warranties, even if related to the performance thereof.. Plaintiffs and Class Members would not have purchased the GTX 0 at the prices that they did, if at all, if the true facts had been known.. The actions of Defendants proximately caused injury to Plaintiffs and Class Members, who are entitled to damages and other legal and equitable relief as a result.

54 Case :-cv-000-crb Document 0 Filed // Page of 0 0 ALTERNATIVE COUNTS. The following Counts are asserted by Plaintiffs on behalf of subclasses of residents of their respective states or a nationwide class alternatively pursuant to Fed. R. Civ. Proc. Rule (d)(), and are not intended to waive allegations as to the application of California law to the claims of all Class Members, nor be offered as admissions as to the application of other claims within this pleading as to all Class Members. COUNT IX Violation Of The Michigan Consumer Protection Act ( MCPA ), Mich. Comp. Laws.0, et seq.. Plaintiff Ostrowski hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Ostrowski brings this claim individually and on behalf of the members of a proposed Michigan Subclass against all Defendants.. Mich. Comp. Laws.0(c) prohibits [r]epresenting that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he or she does not have. Defendants violated this provision by misrepresenting the performance characteristics of the GTX 0.. Mich. Comp. Laws.0(e) prohibits [r]epresenting that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another. Defendants violated this provision by misrepresenting the performance characteristics of the GTX 0.. Plaintiff Ostrowski and the Michigan Subclass did, in fact, rely in substantial part on such representations in their decision regarding the purchase of the GTX 0, which were primarily used for personal, family and household services. 0. Through those misleading and deceptive statements and false promises, Defendants violated the Michigan Consumer Protection Act.

55 Case :-cv-000-crb Document 0 Filed // Page of 0 0. Plaintiff Ostrowski and the Michigan Subclass also reasonably relied on Defendants silence as to issues of material fact with regard to the performance of the GTX 0 in connection with their decisions regarding the purchase and/or use of the GTX 0.. As a direct and proximate result of Defendants deceptive conduct and violation of the Michigan Consumer Protection Act, Plaintiff Ostrowski and the Michigan Subclass have sustained and will continue to sustain economic losses and other damages for which they are entitled to compensatory and equitable damages and declaratory relief in an amount to be proven at trial. COUNT X Violation Of The Florida Deceptive And Unfair Trade Practices Act ( FDUTPA ), Fla. Stat. 0.0, et seq.. Plaintiff Torrales hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Torrales brings this claim individually and on behalf of the members of a proposed Florida Subclass against all Defendants.. This cause of action is brought pursuant to the Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. 0.0, et seq. The express purpose of this Act is to protect the consuming public from those who engage in unfair methods of competition, or unconscionable, deceptive, or unfair acts or practices in the conduct of any trade or commerce. Fla. Stat. 0.0().. Plaintiff Torrales and Florida SubClass Members are consumers within the meaning of Fla. Stat. 0.0().. Defendants are engaged in trade or commerce as defined by Fla. Stat. 0.0().. The sale of the GTX 0 constitutes a consumer transaction within the scope of Fla. Stat. 0.0 to 0... Fla. Stat. 0.0() declares unlawful unfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.

56 Case :-cv-000-crb Document 0 Filed // Page of Defendants have violated the FDUTPA by engaging in the unfair and deceptive practices as described herein which offend public policies and are immoral, unethical, unscrupulous, and substantially injurious to consumers. Specifically, as set forth above, Defendants misrepresented the performance characteristics of the GTX 0.. Defendants unfair and deceptive practices are likely to mislead and have misled Plaintiff Torrales and Florida SubClass Members acting reasonably under the circumstances, and violates Fla. Stat Defendants conduct proximately caused the injuries to Plaintiff Torrales and the Florida Subclass.. Plaintiff Torrales and the Florida Subclass have been aggrieved by Defendants unfair and deceptive practices because they would not have purchased the GTX 0 at the prices they did if they knew the truth about the product, and the graphics card they received was worth substantially less than the card they were promised and expected.. The damages suffered by Plaintiff Torrales and the Florida Subclass were directly and proximately caused by the deceptive, misleading, and unfair practices of Defendants, as more fully described herein.. Pursuant to Fla. Stat. 0.(), Plaintiff Torrales and the Florida Subclass seek a declaratory judgment and court order enjoining the above-described wrongful acts and practices of Defendants and for restitution and disgorgement.. Additionally, pursuant to Fla. Stat. 0.() and 0.0, Plaintiff Torrales and the Florida Subclass make claims for damages and attorneys fees and costs. COUNT XI Violation Of New York Gen. Bus. Law. Plaintiff Bernabel hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Bernabel brings this claim individually and on behalf of the members of a proposed New York Subclass against all Defendants.

57 Case :-cv-000-crb Document 0 Filed // Page of 0 0. By the acts and conduct alleged herein, Defendants committed unfair or deceptive acts and practices by misrepresenting the performance characteristics of the GTX 0, as set forth in detail above. 0. The foregoing deceptive acts and practices were directed at consumers.. The foregoing deceptive acts and practices are misleading in a material way because they fundamentally misrepresent the GTX 0 s performance characteristics in an effort to induce consumers to purchase same and pay the prices they did.. Plaintiff Bernabel and members of the New York Subclass were injured because they would not have purchased the GTX 0 at the prices they did if they knew the truth about the product, and the graphics card they received was worth substantially less than the card they were promised and expected.. On behalf of himself and other members of the New York Subclass, Plaintiff Bernabel seeks to enjoin the unlawful acts and practices described herein, to recover his actual damages or fifty dollars, whichever is greater, three times actual damages, and reasonable attorneys fees to the extent permitted by such law. COUNT XII Violation Of New York Gen. Bus. Law 0. Plaintiff Bernabel hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Bernabel brings this claim individually and on behalf of the members of a proposed New York Subclass against all Defendants.. Based on the foregoing, Defendants have engaged in consumer-oriented conduct that is deceptive or misleading in a material way, which constitutes false advertising in violation of Section 0 of the New York General Business Law.. Defendants false, misleading, and deceptive statements and representations of fact were and are directed to consumers.. Defendants false, misleading, and deceptive statements and representations of fact were and are likely to mislead a reasonable consumer acting reasonably under the circumstances.

58 Case :-cv-000-crb Document 0 Filed // Page of 0 0. Defendants false, misleading, and deceptive statements and representations of fact have resulted in consumer injury or harm to the public interest. 00. As a result of Defendants false, misleading, and deceptive statements and representations of fact, Plaintiff Bernabel and the New York Subclass have suffered and continue to suffer economic injury. 0. Plaintiff Bernabel and the New York Subclass suffered an ascertainable loss caused by Defendants misrepresentations because they would not have purchased the GTX 0 at the prices they did if they knew the truth about the product, and the graphics card they received was worth substantially less than the card they were promised and expected. 0. On behalf of himself and other members of the New York Subclass, Plaintiff Bernabel seeks to enjoin the unlawful acts and practices described herein, to recover his actual damages or five hundred dollars, whichever is greater, three times actual damages, and reasonable attorneys fees, to the extent permitted by such law. COUNT XIII Violation Of The Illinois Consumer Fraud And Deceptive Practices Act, Ill. Comp. Stat. 0/, et seq. 0. Plaintiffs Vorraso, Dropski, and Verlinden hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint. 0. Plaintiffs Vorraso, Dropski, and Verlinden bring this claim individually and on behalf of the members of a proposed Illinois Subclass against all Defendants. 0. Defendants violated ILL. COMP. STAT. 0/ by misrepresenting the performance characteristics of the GTX 0 as set forth in detail above. 0. Defendants also violated ILL. COMP. STAT. 0/ by failing to immediately notify affected customers of the mislabeling of the GTX These deceptive statements and omissions of Defendants were intended to induce Plaintiffs Vorraso, Dropski, and Verlinden and the Illinois SubClass Members reasonable reliance on the misinformation concerning the GTX 0 s performance or omitted material facts regarding the same.

59 Case :-cv-000-crb Document 0 Filed // Page of Plaintiffs Vorraso, Dropski, and Verlinden and the Illinois SubClass Members were deceived by Defendants misrepresentation of the performance characteristics of the GTX Plaintiffs Vorraso, Dropski, and Verlinden and Illinois SubClass Members have suffered injury in fact and lost money and property as a result of these violations of ILL. COMP. STAT. 0/. 0. Plaintiff Vorraso, Dropski, and Verlinden s and the Illinois Subclass injuries were proximately caused by Defendants deceptive behavior.. Pursuant to ILL. COMP. STAT. 0/ and 0a, Plaintiffs Vorraso, Dropski, and Verlinden seek an order requiring Defendants to pay monetary and punitive damages for the conduct described herein, and pay Plaintiffs reasonable attorneys fees and costs of suit. COUNT XIV Violation Of The Missouri Merchandising Practices Act, Mo. Rev. Stat. 0.00, et seq.. Plaintiff Doerrer hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Doerrer brings this claim individually and on behalf of the members of a proposed Missouri Subclass against all Defendants.. The conduct of Defendants as set forth herein constitutes unfair or deceptive acts or practices, including, but not limited to, Defendants mislabeling of the performance characteristics of the GTX 0 as set forth in detail above, which Defendants failed to adequately investigate, disclose, and remedy.. Defendants actions as set forth above occurred in the conduct of trade or commerce.. Defendants actions impact the public interest because Plaintiff Doerrer and members of the Missouri Subclass were injured in the same way as thousands of others purchasing the GTX 0 as a result of Defendants generalized course of deception. All of the wrongful conduct alleged herein occurred, and continues to occur, in the conduct of Defendants business.

60 Case :-cv-000-crb Document 0 Filed // Page 0 of 0 0. Plaintiff Doerrer and the Missouri Subclass were injured as a result of Defendants conduct. Plaintiff Doerrer did not receive the benefit of his bargain in that the GTX 0 does not operate consistent with its labeling.. Defendants conduct proximately caused the injuries to Plaintiff Doerrer and the Missouri Subclass.. Defendants are liable to Plaintiff Doerrer and the Missouri Subclass for damages in amounts to be proven at trial, including attorneys fees, costs, and treble damages. COUNT XV Violation Of The Oklahoma Consumer Protection Act, Okla. Stat. tit., et seq. 0. Plaintiff Ellis hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Ellis brings this claim individually and on behalf of the members of a proposed Oklahoma Subclass against all Defendants.. The conduct of Defendants as set forth herein constitutes unfair or deceptive acts or practices, including, but not limited to, Defendants mislabeling of the performance characteristics of the GTX 0 as set forth in detail above, which Defendants failed to adequately investigate, disclose, and remedy.. Defendants actions as set forth above occurred in the conduct of trade or commerce.. Defendants actions impact the public interest because Plaintiff Ellis and the Oklahoma Subclass were injured in the same way as thousands of others purchasing the GTX 0 as a result of Defendants generalized course of deception. All of the wrongful conduct alleged herein occurred, and continues to occur, in the conduct of Defendants business.. Plaintiff Ellis and the Oklahoma Subclass were injured as a result of Defendants conduct. Plaintiff Ellis did not receive the benefit of his bargain in that the GTX 0 does not operate consistent with its labeling.. Defendants conduct proximately caused the injuries to Plaintiff Ellis and the Oklahoma Subclass. 0

61 Case :-cv-000-crb Document 0 Filed // Page of 0 0. Defendants are liable to Plaintiff Ellis and the Oklahoma Subclass for damages in amounts to be proven at trial, including attorneys fees, costs, and treble damages. COUNT XVI Violations Of The Connecticut Unfair Trade Practices Act, Conn. Gen. Stat. -0, et seq.. Plaintiff Brenek hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Brenek brings this claim individually and on behalf of the members of a proposed Connecticut Subclass against all Defendants. 0. The Connecticut Unfair Trade Practices Act ( CUTPA ), Conn. Gen. Stat. -0b(a), provides in pertinent part that [n]o person shall engage in unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce.. CUTPA defines a person as a natural person, corporation, limited liability company, trust, partnership, incorporated or unincorporated association, and any other legal entity. Defendants are each a person within the meaning of CUTPA.. CUTPA defines trade and commerce to include the sale..., the offering for sale..., or the distribution of any property, tangible or intangible and any other article, commodity, or thing of value in this state. Defendants each engaged in trade and commerce in the State of Connecticut within the meaning of CUTPA.. Defendants each engaged in a deceptive act or practice by making false or misleading statements about the technical specifications and performance characteristics of the GTX 0, as set forth in detail above.. Defendants engaged in unfair acts or practices in the conduct of trade or commerce within the meaning of CUTPA. Defendants conduct as described above was unfair within the meaning of CUTPA because it (a) offends public policy as has been established by statutes, common law or otherwise; (b) was immoral, unethical, oppressive and unscrupulous; or (c) caused substantial injury to consumers. All three criteria do not need to be established to support a finding of unfairness.

62 Case :-cv-000-crb Document 0 Filed // Page of 0 0. (a) Defendants conduct as described herein offends public policy because it violates federal and state laws and federal regulations against engaging in systematic false or misleading advertising and breaches warranties as to the specifications of the GTX 0. (b) In addition, Defendants activities were immoral, unethical, oppressive and unscrupulous. (c) Further, Defendants conduct caused substantial economic injury to Plaintiffs and Class Members residing in Connecticut, who are each out significant dollars based on the purchase of a GTX 0 device that could not operate as represented, which was not outweighed by any countervailing benefits to consumers and which caused an injury that could not reasonably have been avoided.. As a result of Defendants violations of CUTPA based on the facts as alleged herein, Plaintiff Brenek and Class Members residing in Connecticut have suffered an ascertainable loss of money, entitling them to all the relief provided under the CUTPA, including actual damages, equitable relief, costs and attorneys fees. COUNT XVII Violations Of The North Carolina Unfair And Deceptive Trade Practices Act, N.C. Gen. Stat. -.. Plaintiff Bailey hereby incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Bailey brings this claim individually and on behalf of the members of a proposed North Carolina Subclass against all Defendants.. Under N.C. Gen. Stat. -., unfair or deceptive acts or practices in or affecting commerce, are declared unlawful. 0. By engaging the above-described conduct, Defendants violated and continued to violate North Carolina s Unfair and Deceptive Trade Practices Act by, inter alia: a. By making false and misleading oral and written statements that had, and have, the capacity, tendency or effect of deceiving or misleading consumers; b. By making representations that their products have an approval, characteristic, ingredient, use or benefit which they do not have; c. By failing to state material facts, the omission of which deceived or tended to deceive; and

63 Case :-cv-000-crb Document 0 Filed // Page of 0 0 d. Through deception, fraud, misrepresentation and knowing concealment, suppression and omission of material facts with the intent that consumers rely upon the same.. All of the advertisements, marketing, statements, and representations made by Defendants identified above, including on the product labeling and packaging, websites, product descriptions and Reviewer s Guide quoted above, and in the attached Exhibits, qualify as an advertisement under the statute.. Specifically, Defendants business practices, in advertising, marketing, and selling the GTX 0 in misrepresenting material facts, including that the GTX 0 is capable of it operating with a full GB pool of VRAM, ROPs, and 0 KB of L cache capacity, constitute violations of N.C. Gen. Stat. -., including: a. Falsely representing that the GTX 0 has sponsorship, approval, accessory, characteristic, ingredient, use, benefit, or quantity of an amount of ROPs, L cache, and full GB operating capacity which it does not actually possess; b. Falsely representing that the GTX 0 is of a particular standard, quality, grade, style, or model which it is not; c. Failing to state material facts of the actual specifications of the GTX 0, and its fragmented chip architecture of two pools of VRAM which when accessed operate at drastically different speeds, the failure of which deceived or tends to deceive consumers; d. Misrepresenting, and/or knowingly concealing, suppressing, or omitting multiple material facts, including the GTX 0 s actual capabilities, performance, specifications, such as the total number of ROPs and L cache, its fragmented chip architecture, its inability to perform at K resolution, with the intent that consumers, including Plaintiff and Class Members rely on the same in connection with the promotion and sale of the GTX 0.. Defendants engaged in the above conduct in the course of their business, as set forth herein. By way of statements and advertisements Defendants made to Plaintiff Bailey and Subclass Members prior to and at the time of sale regarding the capabilities, performance, specifications, qualifies, and characteristics the GTX 0, Defendants made false and misleading representations of material fact with the intent that Plaintiff Bailey and Subclass Members would reasonably act thereon. By not stating or advertising the GTX 0 s actual capabilities, performance, specifications, qualities, and characteristics, Defendants omitted material facts, which they either knew or reasonably should have known Plaintiff Bailey and Subclass Members in North Carolina would otherwise reasonably rely.

64 Case :-cv-000-crb Document 0 Filed // Page of 0 0. Plaintiff Bailey and Subclass Members in North Carolina reasonably acted in response to these representations to their detriment.. As a result of Defendants unlawful conduct, Plaintiff Bailey and Subclass Members were injured and suffered damages and are entitled to monetary, injunctive, and other equitable relief as determined by the Court, pursuant to North Carolina law. COUNT XVIII Violation of The Maryland Unfair and Deceptive Trade Practices Act, Md. Code Ann. -0. Plaintiff Chung incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Chung brings this claim individually and on behalf of the members of a proposed Maryland Subclass against all Defendants.. Md. Code Ann. -0, subdivision provides that: A person may not engage in any unfair or deceptive trade practice in () The sale of any consumer goods or () The offer for sale of consumer goods.. Md. Code Ann. -0 provides that unfair or deceptive trade practices include any: () False, falsely disparaging, or misleading oral or written statement, visual description, or other representation of any kind which has the capacity, tendency, or effect of deceiving or misleading consumers; () Representation that: (i) (iv) Consumer goods have a sponsorship, approval, accessory, characteristic, ingredient, use, benefit, or quantity which they do not have; Consumer goods are of a particular standard, quality, grade, style, or model which they are not; () Failure to state a material fact if the failure deceives or tends to deceive; () Advertisement or offer of consumer goods ; (i) Without intend to sell them as advertised or offered;

65 Case :-cv-000-crb Document 0 Filed // Page of 0 0-0(c). 0. Plaintiff Chung and Subclass Members qualify as consumers under Md. Code Ann.. Defendants each qualify as a person under Md. Code Ann. -0(h).. All of the advertisements, marketing, statements, and representations made by Defendants qualify as an advertisement under Md. Code Ann. -0(b).. NVIDIA s business practices, in advertising, marketing and selling the GTX 0, in misrepresenting and omitting material facts, including that the GTX 0 is incapable of operating with a full GB pool of VRAM, ROPs, and 0 KB of L cache capacity, constitute multiple, separate violations of Md. Code Ann. -0 (), (), () and (), including: a. Falsely representing that the GTX 0 has sponsorship, approval, accessory, characteristic, ingredient, use, benefit, or quantity of an amount of ROPs, L cache, and the ability to fully access GB of memory at the same functionality which it does not actually possess; b. Falsely representing that the GTX 0 is of a particular standard, quality, grade, style, or model which it is not; c. Failing to state material facts of the actual specifications of the GTX 0, and its fragmented chip architecture of two pools of VRAM which operate at drastically different speeds when accessed, the failure of which of the deceived or tends to deceive consumers Plaintiff and Class Members; and d. Misrepresenting, and/or knowingly concealing, suppressing, or omitting multiple material facts, including the GTX 0 s actual capabilities, performance, specifications, such as the fragmentation of 0.GB of the total VRAM, the total number of ROPs and L cache, and its inability to fully perform at K resolution, with the intent that consumers, including Plaintiff and Class Members rely on the same in connection with the promotion and sale of the GTX 0.. Defendants engaged in the above conduct in the course of their business, as set forth herein. By way of statements and advertisements Defendants made to Plaintiff Chung and Subclass Members in Maryland prior to and at the time of sale regarding the capabilities, performance, specifications, qualities, and characteristics the GTX 0, Defendants made false and misleading representations of material fact with the intent that Plaintiff Chung and Subclass Members would reasonably act upon them. By not stating or advertising the GTX 0 s actual capabilities, performance,

66 Case :-cv-000-crb Document 0 Filed // Page of 0 specifications, qualifies, and characteristics, Defendants omitted material facts, which it reasonably should have known Plaintiff Chung and Subclass Members in Maryland would otherwise rely.. As a result of Defendants unlawful conduct, Plaintiff Chung and Subclass Members in Maryland were injured and suffered damages and are entitled to monetary, injunctive, and other equitable relief as determined by the Court. COUNT XIX Violation Of The Colorado Unfair and Deceptive Trade Practices Act, C.R.S Plaintiff Giordano incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Giordano brings this claim individually and on behalf of the members of a proposed Colorado Subclass against all Defendants.. C.R.S. --0, subdivision provides that: A person engages in a deceptive trade practice when, in the course of a person s business,, that person: (b) Knowingly makes a false representation as to the source, sponsorship, approval, or certification of goods; 0 (e) (f) (i) (u) Knowingly makes a false representation as to the characteristics, ingredients, uses, benefits, alterations, or quantities of goods, food, services, or property or a false representation as to the sponsorship, approval, status, affiliation, or connection of a person therewith; services, or property are of a particular standard, quality, or grade, or that goods are of a particular style or model, if he knows or should know that they are of another; Advertises goods, services, or property with intent not to sell them as advertises; and Fails to disclose material information concerning goods, services, or property which information was known at the time of an advertisement or sale if such failure to disclose

67 Case :-cv-000-crb Document 0 Filed // Page of 0 0 such information was intended to induce the consumer to enter into a transaction;. Defendants qualify as a person under C.R.S. --0(). 0. A public interest exists in ensuring Defendants make accurate representations about the products they sell.. Defendants business practices, in advertising, marketing and selling the GTX 0, in misrepresenting material facts, including the GTX 0 is incapable of accessing the full GB pool of VRAM, ROPs, and 0KB of L cache capacity, constitute multiple, separate violations of C.R.S. --0, including: a. Falsely representing that the GTX 0 has sponsorship, approval, accessory, characteristic, ingredient, use, benefit, or quantity of an amount of ROPs, L cache, and the inability to fully access GB of memory at the same functionality, which it does not actually possess; b. Falsely representing that the GTX 0 is of a particular standard, quality, grade, style, or model which it is not; c. Failing to state material facts of the actual specifications of the GTX 0, and its fragmented chip architecture of two pools of VRAM which operate at drastically different speeds when accessed, the failure of which of the deceived or tends to deceive consumers Plaintiff and Class Members; and d. Misrepresenting, and/or knowingly concealing, suppressing, or omitting multiple material facts, including the GTX 0 s actual capabilities, performance, specifications, such as the fragmentation of 0.GB of the total VRAM, the total number of ROPs and L cache, and its ability to fully perform at K resolution, with the intent that consumers, including Plaintiff and Class Members rely on the same in connection with the promotion and sale of the GTX 0.. Defendants engaged in the above conduct in the course of their business, as set forth herein. By way of statements and advertisements Defendants made to Plaintiff Giordano and Subclass Members in Colorado prior to and at the time of sale regarding the capabilities, performance, specifications, qualities, and characteristics the GTX 0, Defendants made false and misleading representations of material fact with the intent that Plaintiff Giordano and Subclass Members in Colorado would reasonably act in response thereto. By not stating or advertising the GTX 0 s actual capabilities, performance, specifications, qualifies, and characteristics, Defendants omitted material facts, which it knew Plaintiff Giordano and Subclass Members in Colorado would otherwise rely.

68 Case :-cv-000-crb Document 0 Filed // Page of 0 0. As a result of Defendants unlawful conduct, Plaintiff Giordano and Subclass Members in Colorado were injured and are entitled to monetary, injunctive, and other equitable relief as determined by the Court. COUNT XX Violation Of The Pennsylvania Unfair Trade Practices and Consumer Protection Law, Pa. Stat. 0-, et seq.. Plaintiff Palagano incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Palagano brings this claim individually and on behalf of the members of a proposed Pennsylvania Subclass against all Defendants.. Defendants conduct in designing, testing, warranting, building, distributing, and/or marketing the GTX 0 was an unfair method of competition and/or an unfair or deceptive act or practice in the conduct of any trade or commerce, in violation of Pa. Stat. 0- as defined by Pa. Stat. 0-() otherwise known as the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Further, Defendants concealment, negligent misrepresentation, and breach of express and implied warranties constitute unfair, unlawful and/or fraudulent business practices in violation of Pa. Stat Plaintiff Palagano and members of the Pennsylvania Subclass have been injured and have suffered loss of money or property as a result of Defendants unfair methods of competition and/or unfair or deceptive acts or practices. COUNT XXI Violation of the Georgia Fair Business Practices Act. Plaintiff Parker incorporates by reference the allegations contained in all preceding paragraphs of this complaint.. Plaintiff Parker brings this claim individually and on behalf of the members of a proposed Georgia Subclass against all Defendants. 0. O.C.G.A. 0--, provides that: Unfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce is declared unlawful.

69 Case :-cv-000-crb Document 0 Filed // Page of 0 0. O.C.G.A. 0--, subsection (b) makes the following conduct unlawful:... () Causing actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of goods or services;... () Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities that they do not have. ; and... () Representing that good or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another. Defendants each qualify as a person under O.C.G.A. 0--(a)().. Plaintiff Parker and Subclass Members in Georgia qualify as consumers under O.C.G.A. 0--(a)().. All of the advertisements, marketing, statements, and representations made by Defendants as detailed above qualify as consumer acts or practices under O.C.G.A. 0--(a)().. Defendants business practices, in advertising, marketing and selling the GTX 0, in misrepresenting and omitting material facts, including that the GTX 0 is incapable of operating and accessing a full GB pool of VRAM at similar speeds, ROPs, and 0KB of L cache capacity, constitute violations of O.C.G.A. 0--, including: a. Falsely representing that the GTX 0 has sponsorship, approval, accessory, characteristic, ingredient, use, benefit, or quantity of an amount of ROPs, L cache, and access to a full GB of VRAM which it does not actually possess; b. Falsely representing that the GTX 0 is of a particular standard, quality, grade, style, or model which it is not; c. Failing to state material facts of the actual specifications of the GTX 0, and its fragmented chip architecture of two pools of VRAM which operate at drastically different speeds when accessed, the failure of which of the deceived or tends to deceive consumers Plaintiff and Class Members; and d. Misrepresenting, and/or knowingly concealing, suppressing, or omitting multiple material facts, including the GTX 0 s actual capabilities, performance, specifications, such as the fragmentation of 0.GB of the total VRAM, the total number of ROPs and L cache, and its inability to fully perform at K resolution, with the intent that consumers, including Plaintiff and Class Members rely on the same in connection with the promotion and sale of the GTX 0.

70 Case :-cv-000-crb Document 0 Filed // Page 0 of 0 0. Defendants engaged in the above conduct in the course of their business, as set forth herein. By way of statements and advertisements Defendants made to Plaintiff Parker and Subclass Members in Georgia prior to and at the time of sale regarding the capabilities, performance, specifications, qualities, and characteristics the GTX 0, Defendants made false and misleading representations of material fact with the intent that Plaintiff Parker and Subclass Members in Georgia would reasonably act in response thereto. By not stating or advertising the GTX 0 s actual capabilities, performance, specifications, qualities, and characteristics, Defendants omitted material facts, which it knew Plaintiff Parker and Subclass Members in Georgia would otherwise reasonably rely.. As a result of Defendants unlawful conduct, Plaintiff Parker and Subclass Members in Georgia were injured and suffered damages and are entitled to monetary, injunctive, and other equitable relief as determined by the Court. COUNT XXII Violation of Similar Unfair and Deceptive Trade Practices Act. Plaintiffs hereby incorporate by reference the allegations contained in all preceding paragraphs of this complaint.. Similar uniform and deceptive trade practice statutes, similar in material respects not otherwise stated herein, are in effect in many jurisdictions within the United States. See, e.g., ARIZ. REV. STAT. -, et seq. (Arizona); ARK. CODE ANN. --0, et seq. (Arkansas); DEL. CODE ANN. tit.,, et seq. (Delaware); D.C. CODE ANN. -0, et seq. (District of Columbia); HAW. REV. STAT. 0, et seq. (Hawaii); IDAHO CODE -0, et seq. (Idaho); IND. CODE ANN , et seq. (Indiana); KY. REV. STAT. ANN..0, et seq. (Kentucky); ME. REV. STAT. tit., 0-A, et seq. (Maine); MASS. GEN. LAWS ch. A,, et seq. (Massachusetts); MINN. STAT.., et seq. (Minnesota); MO. REV. STAT. 0.00, et seq. (Missouri); NEB. REV. STAT. -0, et seq. (Nebraska); NEV. REV. STAT..00, et seq. (Nevada); N.H. REV. STAT. ANN. -A:, et seq. (New Hampshire); N.M. STAT. ANN. --, et seq. (New Mexico); N.D. CENT. CODE --0, et seq. (North Dakota); OHIO REV. CODE ANN..0, et seq. (Ohio); OR. REV. STAT..0, et seq. (Oregon); R.I. GEN. LAWS -.-, et seq. (Rhode Island); S.D. CODIFIED LAWS --, et seq. (South Dakota); TENN. CODE ANN. --0, et seq. (Tennessee); TEX. BUS. & COM. CODE ANN.., et seq. (Texas); UTAH CODE. ANN. --, et seq. (Utah); VA. CODE ANN..-, et seq. (Virginia); WASH. REV. CODE..00, et seq. (Washington); W. VA. CODE A--0, et seq. (West Virginia); WIS. STAT. 00., et seq. (Wisconsin); WYO. STAT. ANN. 0--0, et seq. (Wyoming). 0

71 Case :-cv-000-crb Document 0 Filed // Page of Defendants business practices, in advertising, marketing and selling the GTX 0, in misrepresenting material facts, including that the GTX 0 is capable of it operating with a full GB pool of VRAM, ROPs, and 0KB of L cache capacity, constitute multiple, separate violations of these similar statutes across the United States, including: a. Falsely representing that the GTX 0 has sponsorship, approval, accessory, characteristic, ingredient, use, benefit, or quantity of an amount of ROPs, L cache, and is able to access a full GB of VRAM which it is unable to access; b. Falsely representing that the GTX 0 is of a particular standard, quality, grade, style, or model which it is not; c. Failing to state material facts of the actual specifications of the GTX 0, and its fragmented chip architecture of two pools of VRAM, which operate at drastically different speeds when accessed, the failure of which of the deceived or tends to deceive consumers Plaintiff and Class Members; and d. Misrepresenting, and/or knowingly concealing, suppressing, or omitting multiple material facts, including the GTX 0 s actual capabilities, performance, all specifications, with the intent that consumers, including Plaintiffs and Class Members rely on the same in connection with the promotion and sale of the GTX 0.. It was reasonable for Plaintiffs and Class Members to act upon the statements and representations and omitted material facts made by Defendants as set forth above or on product packaging and labeling, those found in the Reviewer s Guide and the websites referenced above. Plaintiffs and Class Members purchased the GTX 0, which did not conform to such representations and omitted material facts.. As a result of Defendants unlawful conduct, Plaintiffs and Class Members were injured and suffered damages and are entitled to monetary, injunctive, and other equitable relief as determined by the Court. PRAYER FOR RELIEF Plaintiffs, on behalf of themselves and the Class (or subclass as applicable), request that the Court order the following relief and enter judgment against Defendants as follows as applicable for the particular cause of action:

72 Case :-cv-000-crb Document 0 Filed // Page of 0 0 a. For an order certifying the Class under Rule of the Federal Rules of Civil Procedure and naming Plaintiffs as representatives of the Class and Plaintiffs attorneys as Class Counsel to represent these members; b. For an order declaring the Defendants conduct violates the statutes and laws referenced herein; c. For an order finding in favor of Plaintiffs and the Class on all counts asserted herein; d. For compensatory damages in amounts to be determined by the Court and/or jury; e. For pre-judgment and post-judgment interest on all amounts awarded; f. For an order of restitution, disgorgement and all other forms of equitable monetary relief; g. For injunctive relief as pleaded or as the Court may deem proper; and h. For an order awarding Plaintiffs and the Class their reasonable attorneys fees, expenses and costs of suit under, inter alia, the MMWA, the CLRA, the Song-Beverly Warranty Act, C.C.P. Section 0., the common fund and substantial benefit doctrines, and all other applicable laws. JURY TRIAL DEMAND Plaintiffs demand a trial of this action by a jury on all claims so triable. DATED: November, 0 WHATLEY KALLAS LLP By: ALAN M. MANSFIELD (SBN ) Alan M. Mansfield (SBN ) amansfield@whatleykallas.com Sansome Street, th Fl., PMB # San Francisco, CA 0 Tel: () 0-0 Fax: () - 0 W. Bernardo Drive, Suite 00 San Diego, CA Tel: () 0-0 Fax: () -

73 Case :-cv-000-crb Document 0 Filed // Page of 0 0 WHATLEY KALLAS, LLP Joe R. Whatley, Jr jwhatley@whatleykallas.com (Admitted Pro Hac Vice) 0 Avenue of the Americas, 0 th Floor New York, NY 00 Tel: () -00 Fax: (00) - BURSOR & FISHER, P.A. By: /s/ L. Timothy Fisher L. Timothy Fisher L. Timothy Fisher (SBN ) ltfisher@bursor.com Julia A. Luster (SBN 0) jluster@bursor.com Neal J. Deckant (admitted pro hac vice) ndeckant@bursor.com 0 North California Boulevard, Suite 0 Walnut Creek, CA Tel: () 00- Fax: () 0-00 Co-Lead Interim Class Counsel WIGGINS CHILDS PANTAZIS FISHER GOLDFARB, LLC Dennis G. Pantazis (Admitted Pro Hac Vice) dgp@wigginschilds.com Robert J. Camp rcamp@wigginschilds.com D. G. Pantazis, Jr. (Admitted Pro Hac Vice) dgpjr@wigginschilds.com The Kress Building 0 Nineteenth Street North Birmingham, AL 0 Tel: (0) -0 Fax: (0) -0 LOWE LAW FIRM, LLC E. Clayton Lowe, Jr. clowe@lowelaw.com The Kress Building 0 Nineteenth Street North, Suite Birmingham, AL 0 Tel: (0) -00

74 Case :-cv-000-crb Document 0 Filed // Page of 0 0 KAPLAN FOX & KILSHEIMER, LLP Laurence D. King lking@kaplanfox.com Linda Fong lfong@kaplanfox.com Mario M. Choi mchoi@kaplanfox.com 0 Sansome Street, Suite 00 San Francisco, CA 0 Tel: () -00 Fax: () -0 Frederic S. Fox ffox@kaplanfox.com David A. Straite dstraite@kaplanfox.com 0 Third Ave., th Floor New York, NY 00 Tel: () -0 Fax: () - WITES & KAPETAN, P.A. Marc A. Wites mwites@wklawyers.com 00 North Federal Highway Lighthouse Point, FL 0 Tel: () 0- Fax: (--00 DOYLE LOWTHER LLP William J. Doyle II bill@doylelowther.com John Lowther john@doylelowther.com 00 NE th Ave., Suite Vancouver, WA Tel: (0) -0 Fax: (0) -0 WESTERMAN LAW CORP. Jeff S. Westerman jwesterman@jswlegal.com Anna Faircloth afaircloth@jswegal.com 00 Avenue of the Stars, th Fl. Los Angeles, CA 00 Tel: (0) -0

75 Case :-cv-000-crb Document 0 Filed // Page of 0 0 EDELSON, PC Samuel M. Lasser slasser@edelson.com Divisadero Street San Francisco, CA Tel: () -0 Fax: () -0 Rafey S. Balabanian rbalabanian@edelson.com Benjamin H. Richman brichman@edelson.com Amir C. Missaghi amissaghi@edelson.com 0 North LaSalle Street, Suite 00 Chicago, IL 0 Tel: () -0 Fax: () - AUDET & PARTNERS, LLP William M. Audet waudet@audetlaw.com Jonas P. Mann jmann@audetlaw.com Theodore H. Chase tchase@audetlaw.com Main Street, Suite 0 San Francisco CA 0 Tel: () - Fax: () - BRAMSON PLUTZIK MAHLER & BIRKHAEUSER LLP Alan R. Plutzik aplutzik@bramsonplutzik.com Michael S. Strimling mstrimling@bramsonplutzik.com Oak Grove Road, Suite 0 Walnut Creek, CA Tel: () -000 Fax: () - LEVI & KORSINSKY LLP Shane Rowley srowley@zlk.com Courtney E. Maccarone cmaccarone@zlk.com

76 Case :-cv-000-crb Document 0 Filed // Page of 0 0 Broad Street, th Floor New York, NY 000 Tel: () -00 Fax: () - WHITFIELD BRYSON & MASON LLP Gary E. Mason gmason@wbmllp.com Esfand Y. Nafisi enafisi@wbmllp.com Benjamin S. Branda bbranda@wbmllp.com Massachusetts Ave, NW Suite 0 Washington, DC 00 Tel: (0) -0 Fax: (0) - Attorneys for Plaintiffs 0

77 Case :-cv-000-crb Document 0- Filed // Page of 0 WHATLEY KALLAS LLP Alan M. Mansfield (SBN ) amansfield@whatleykallas.com Sansome Street, th Fl., PMB # San Francisco, CA 0 Tel: () 0-0 Fax: () - BURSOR & FISHER, P.A. L. Timothy Fisher (SBN ) ltfisher@bursor.com Julia A. Luster (SBN 0) jluster@bursor.com Neal J. Deckant (admitted pro hac vice) ndeckant@bursor.com 0 North California Boulevard, Suite 0 Walnut Creek, CA Tel: () 00- Fax: () 0-00 Co-Lead Interim Class Counsel IN RE NVIDIA GTX 0 GRAPHICS CARD LITIGATION THIS DOCUMENT RELATES TO: ALL ACTIONS UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA CLASS ACTION AFFIDAVIT OF VENUE 0 I, L. TIMOTHY FISHER, declare as follows:. I am one of the counsel for Plaintiffs in this action and make this declaration to the best of my knowledge, information, and belief of the facts stated herein.. At all times herein, Defendants NVIDIA Corporation ( NVIDIA ), Gigabyte Global Business Corporation d/b/a Giga-Byte Technology Co. Ltd., G.B.T. Inc. (together with Gigabyte Global Business Corporation, Gigabyte ), ASUS Computer International ( ASUS ), and EVGA Corporation ( EVGA ) (collectively, the Defendants ) were and are doing business within this District either directly as their corporate headquarters are based here or indirectly through their AFFIDAVIT OF VENUE

78 Case :-cv-000-crb Document 0- Filed // Page of 0 0 promotion, marketing, distribution, and sales of the GTX 0 GPU products at issue in this litigation, as well as their operation of interactive websites that permit consumers to order goods and services from them and engage in transactions in this District, and thus this District is also where the transactions or substantial portions thereof occurred.. Plaintiffs Complaint filed in this matter contains a cause of action for violation of the Consumers Legal Remedies Act as against Defendants.. Plaintiffs Andrew Ostrowski, Mark Roushion, Kiloe Young, Jason Doerrer, Pedro Santiago, Kyle Ellis, Andy Torrales, Dylan Jordan, Joseph Vorraso, David Dropski, Austin Verlinden, Stephen Denz, Joel Bernabel, Jan Paolo Jimenez, Timothy Farley, Alexander Montgomery, Ryan Brenek, Jorrell Dye, Chester Bailey, Gukjin Chung, Garret Giordano, Francis Palagano, and Patrick E. Parker are either residents of this District or purchased products from Defendants located in this District or referenced NVIDIA s interactive website that advertises the GTX 0 GPU, which is maintained in this District. Thus, a substantial portion of the transactions at issue occurred in this District.. Defendants NVIDIA and ASUS are Delaware corporations with their principal places of business and headquarters in this District, and Defendants Gigabyte, G.B.T., and EVGA are California corporations doing business in this District.. Per the foregoing assertions, this cause of action has been properly commenced in the proper District for trial. I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct and that this declaration was signed on the th day of November, 0, at Walnut Creek, California. L. TIMOTHY FISHER AFFIDAVIT OF VENUE

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