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Cooper v. Adobe Systems Inc.

United States District Court, N.D. California, San Jose Division

October 11, 2019

DAVID KEITH COOPER, Plaintiff,
v.
ADOBE SYSTEMS INCORPORATED, Defendant.

          ORDER GRANTING MOTION TO COMPEL ARBITRATION AND STAYING THE CASE PENDING ARBITRATION; DENYING MOTION TO DISMISS CLASS CLAIMS [RE: ECF 16; 18]

          BETH LABSON FREEMAN UNITED STATES DISTRICT JUDGE.

         Plaintiff David Cooper (“Cooper” or “Plaintiff”), a commercial photographer, videographer, and video editor, brings claims on behalf of himself and a putative class of others similarly situated against Adobe Systems Incorporated (“Adobe” or “Defendant”) for violations of various California laws and Maryland's Consumer Protection Act arising from Cooper's use of one of Adobe's video editing software programs. Cooper alleges that Adobe Premiere Pro CC 2017.1 (Version 11.1.0) (“PP2017.1”) malfunctioned and permanently deleted Cooper's files and data, including those not associated with the PP2017.1. Before the Court is Adobe's Motion to Compel Arbitration, Dismiss Class Claims, and Stay All Proceedings. Motion, ECF 16. Cooper opposes the motion. Opp'n, ECF 34. Adobe has replied. Reply, ECF 35. The Court heard oral arguments on September 18, 2019.

         I. BACKGROUND

         Cooper is a commercial photographer, videographer, and video editor, who has traveled to several countries on assignments for editorial, advertising, and governmental organizations. Compl. ¶¶ 7-9. Between 2010 and 2017, Cooper captured approximately 500 hours of digital video footage for a variety of his clients in several countries, using professional equipment. Id. ¶¶ 34-38.

         Adobe Premiere Pro CC is a video editing program designed for creating professional-grade videos for film, television, and the Internet. Id. ¶ 20. Cooper first licensed Adobe Premiere Pro CC software on June 17, 2013, for $50 per month and renewed his license every month thereafter. Id. ¶¶ 42-43. On April 19, 2017, Adobe released an updated version of Premiere Pro CC: PP2017.1. Motion at 2; Compl. ¶ 21. Approximately two weeks after its release, Cooper downloaded and installed PP2017.1. Compl. ¶ 44. Approximately two weeks after that, Cooper opened PP2017.1 and used it to complete a video editing project. Id. ¶ 45.

         As designed, when a user utilizes Premiere Pro CC, the program creates smaller, temporary files, which it automatically moves to store in a “Media Cache” folder and subdirectories. Id. ¶¶ 22-25. PP2017.1's “Preference” interface includes a “Clean Cache” function. Id. ¶ 28. When operating properly, the “Clean Cache” function deletes only the temporary files within the “Media Cache” folder and its subdirectories. Id. ¶ 29.

         When Cooper used PP2017.1 in May 2017, he moved the “Media Cache” folder from his computer's internal hard drive to an external hard drive, where he stored most of his large digital files, including all his video footage files. Id. ¶¶ 46-47. Cooper organized his external hard drive in three main folders: (1) “Videos, ” (2) “Projects, ” and (3) “Photographs.” Id. ¶ 48. Cooper selected the Videos folder on his external drive for the location of PP2017.1's “Media Cache” folder and its subdirectories. Id. ¶ 49. When Cooper executed the “Clean Cache” command in PP2017.1, instead of deleting only the temporary files within the “Media Cache” folder and its subdirectories, the program permanently deleted all the files on Cooper's external hard drive that (1) had not been referenced or opened within the previous 90 days and (2) were located in the Videos folder and its subfolders. Id. ¶¶ 50-52. The deleted files included some that were not imported into or generated by PP2017.1. Id. ¶ 53. Cooper was unable to recover his files. Id. ¶¶ 54-57. Other PP2017.1 users reported similar unintended deletion of files. Id. ¶¶ 64-67.

         In an apparent acknowledgement of a problem with the media cache deletion feature in PP2017.1, on May 17, 2017, Adobe released an updated version of the program (Premier Pro CC 2017, version 11.1.1), that Adobe described as follows:

The 11.1.1 bug-fix update for Premiere Pro addresses an issue with the recently introduced feature to clear the Media Cache Folder automatically after 90 days.
The update changes the behavior of the media cache deletion. With 11.1.1, only files that are within the Media Cache folder's subdirectories will be deleted. Files that sit next to it will no longer be affected. However, we still strongly recommend keeping the Media Cache folder separate from your original media.

Compl. ¶ 32; ECF 18-1 (Patrick Palmer, Premiere Pro 11.1.1 update, TheBlog. Adobe.Com (May 17, 2017), https://theblog.adobe.com/premiere-pro-11-1-1-update/).

         On May 25, 2017, Adobe posted the following on its website under the title “Avoid potential deletion of media files in Premiere Pro CC 2017 (11.1)”:

Working with the new Premiere Pro CC 2017 (11.1) automatic Media Cache management tools to avoid unintended deletion of user media
Premiere Pro CC 2017 (11.1) introduced a new feature to manage and automatically remove aging and unnecessary media cache files. This feature was designed to assist users in managing existing project media cache files more easily. In the default location for media cache preferences, there is no issue. However, incorrect usage of this feature has the potential for unintentional file deletion.
To avoid this issue update to Premiere Pro CC 2017 (11.1.1).

Compl. ¶ 33; ECF 18-2 (Adobe sys. Inc., Avoid potential deletion of media files in Premiere Pro CC 2017 (11.1), Helpx.Adobe.Com (2018), https://helpx.adobe.com/premiere-pro/kb/avoid-potential-deletion-of-media-files-in-premiere-pro-cc-2017-.html).

         Adobe does not dispute that PP2017.1 was defective, but it notes that Cooper's allegations acknowledge that “Adobe promptly took steps to address this issue by releasing a new version of Premiere Pro, and by notifying customers of the issue and informing them of ways to avoid inadvertent deletion of files while using the program.” Opp'n at 4.

         Cooper brings the following claims against Adobe on behalf of himself and similarly-situated individuals: (1) Negligence under California Law; (2) Strict Products Liability for Defective Design under California Law; (3) Violation of California's Consumers Legal Remedies Act (“CLRA”), California Civil Code §§ 1750, et seq. (Injunctive relief only); (4) Violation of California's Unfair Competition Law (“UCL”), California Business & Professions Code §§ 17200, et seq.; (5) Violation of Maryland's Consumer Protection Act, MD. Code Ann., Com. Law § 13- 101 et seq.; and (6) Restitution / Unjust Enrichment under California Law. Compl. ¶¶ 85-157.

         II. THE ARBITRATION AGREEMENT

         According to Adobe (and not disputed by Cooper), “Creative Cloud” is a suite of applications and services that offers a variety of tools to perform creative work, such as image compositing, photo and video editing, web design, and digital painting. Motion at 1-2. All Creative Cloud users are required to “view and affirmatively agree to Adobe's General Terms of Use” through a pop-up interface. Id. at 2. This pop-up interface is titled “Terms of Use” and presents the customer with a scrollable textbox containing the most current version of Adobe's Terms of Use, applicable to all Creative Cloud software. Id. Without an affirmative agreement to the General Terms of Use, users “cannot continue using any Creative Cloud program or service.” Id. One of the software applications Adobe makes available through its Creative Cloud subscription plans is Premiere Pro-the program at issue in this case. Id. Lightroom CC (“Lightroom”), a photography software program, is another application available through Adobe's Creative Cloud. Id.

         Adobe's General Terms of Use were updated on June 16, 2016. Motion at 2. On June 18, 2016, Cooper was presented with Adobe's General Terms of Use of through a pop-up interface in Lightroom. Id. Cooper was presented with Adobe's General Terms of Use in connection with Lightroom, and not Premier Pro CC, because Lightroom was the first Creative Cloud program Cooper accessed after the Terms of Use were ...


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