United States District Court, N.D. California, San Jose Division
ORDER GRANTING MOTION TO COMPEL ARBITRATION AND
STAYING THE CASE PENDING ARBITRATION; DENYING MOTION TO
DISMISS CLASS CLAIMS [RE: ECF 16; 18]
LABSON FREEMAN UNITED STATES DISTRICT JUDGE.
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
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.
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.
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.
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.
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),
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),
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
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. ¶¶
THE ARBITRATION AGREEMENT
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
interface. Id. at 2. This pop-up interface is titled
scrollable textbox containing the most current version of
software. Id. Without an affirmative agreement to
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
2. On June 18, 2016, Cooper was presented with Adobe's
Lightroom. Id. Cooper was presented with Adobe's
Premier Pro CC, because Lightroom was the first Creative