Plaintiffs Get Third Chance in Symantec Software Class Action Lawsuit

U.S. District Judge Jon S. Tigar is giving a plaintiff and her legal team a third chance to submit an amended class action lawsuit that accuses computer software firm Symantec of failing to warn consumers that its Norton Antivirus software had been compromised during a 2006 breach. The breach resulted in hackers stealing a source code for the products, which the proposed class action lawsuit alleges caused consumers to overpay for the products.

Lead plaintiff Kathleen Haskins alleges in the class action lawsuit that she and other consumers would not have purchased the compromised software — which includes Symantec’s Norton Antivirus, pcAnywhere, Norton SystemWorks, Norton Antivirus Corporate Edition and Norton Internet Security software – if Norton had disclosed the source code theft.

“Rather, Symantec continued marketing, advertising, selling, leasing and/or licensing the compromised Symantec products to plaintiff and class members as if nothing had happened, leading them to believe the compromised Symantec products were secure and completely functional as advertised,” the original class action lawsuit stated. As a result, customers unknowingly placed their personally identifiable information at risk for theft and misuse and paid more for the computer and data security software than it was worth, Haskins alleged.

In his Dec. 12 decision granting partial leave to amend the second proposed class action lawsuit, the judge noted that Haskins had not sufficiently pled violations of California’s Consumer Legal Remedies Act and Unfair Competition law because she was unable to state which advertisements or representations she read or saw prior to buying the software around the end of 2007.

Tigar wrote that although hackers did access information that resulted in a data breach that may have harmed consumers, to allege an ongoing advertising campaign similar to that allowed in the tobacco class action lawsuits, Haskins would need to demonstrate so-called “saturation advertising” that occurred for years prior to her purchase, which does not exist in the complaint. Moreover, the proposed class action lawsuit did not indicate which statements that would constitute such a campaign were false and why.

However, the judge did shoot back at Symantec’s defense team’s assertion that downloaded software is not a good or service as well as the lack of economic damages. In the latter case, Haskins alleged that she would not have bought the product were it not for the alleged misrepresentations of the software company. In the former, Tigar acidly noted that when the Consumers Legal Remedies Act was passed in 1970, “[i]t seems unlikely that the Legislature knowingly exempted computer software from the CLRA’s scope two years before the invention of Pong.”

The judge said that in addition to the other requests in the motion to dismiss the class action lawsuit with leave to amend, the CLRA violation must be supported by either the above-noted pervasive advertising campaign or Haskins’ using commercials or misleading representations to buy the Norton Antivirus software, as well as identify what claims were false.

Haskins is represented by class action lawyers Timothy G. Blood, Thomas J. O’Reardon II and Paula M. Roach of Blood Hurst & O’Reardon LLP; Richard L. Coffman of The Coffman Law Firm; and Ben Barnow of Barnow & Associates PC.

The Norton Antivirus Software Class Action Lawsuit is Kathleen Haskins, et al. v. Symantec Corp., Case No. 13-cv-01834, U.S. District Court, Northern District of California.

UPDATE: After a third unsuccessful try to amend the plaintiff’s claims, the Symantec Norton Antivirus class action lawsuit was dismissed on June 2, 2014.