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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACK HAUGHT, individually and on behalf 

of all others similarly situated,

Plaintiff,

v.

MOTOROLA MOBILITY, INC., a Delaware 

corporation, 

Defendant.

Case No. 

CLASS ACTION COMPLAINT AND JURY DEMAND

Plaintiff Jack Haught (“Plaintiff”) brings this Class Action Complaint against Defendant 

Motorola Mobility, Inc. (“Defendant” or “Motorola”) based upon its false and misleading 

representations and omissions of material fact made to Plaintiff and similarly-situated others

regarding the capability of its CLIQ XT mobile device to be updated with the newer version of 

its mobile operating system. Plaintiff, for his Class Action Complaint, alleges as follows upon 

personal knowledge as to himself and his own acts and experiences and, as to all other matters, 

upon information and belief, including investigation conducted by his attorneys.

NATURE OF THE CASE

1. In March of 2010, Motorola released the CLIQ XT mobile handset, a device that 

despite being a brand new product, was based upon the outdated Android 1.5 mobile operating 

system.

2. In response to consumer inquiry, as well as of its own accord, Motorola made 

numerous representations over the course of the next ten months that it would upgrade the CLIQ 

XT’s mobile operating system to the updated Android 2.1 platform. These representations were

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widely disseminated to the public through Motorola’s own website, its official online customer 

service forums, and its Twitter account.

3. During these ten months, Motorola failed to inform consumers and actively 

concealed from them the fact that it never actually intended to upgrade the CLIQ XT. Ultimately, 

consumers relied upon Motorola’s omissions and misrepresentations in purchasing the CLIQ XT

and continuing to use the CLIQ XT instead of returning it for a more up-to-date phone.

PARTIES

4. Jack Haught is a natural person and citizen of the State of Ohio.

5. Defendant Motorola Mobility, Inc. is a corporation incorporated and existing 

under the laws of the State of Delaware with its corporate headquarters and principal place of 

business located at 600 North US Highway 45, Libertyville, Illinois. Defendant does significant

business in this District, throughout the State of Illinois, and nationwide. 

JURISDICTION AND VENUE

6. This Court has subject matter jurisdiction over Plaintiff’s claims pursuant to 28 

U.S.C. § 1332(d), because (a) at least one member of the putative class is a citizen of a state 

different from Defendant, (b) the amount in controversy exceeds $5,000,000, exclusive of 

interest and costs, and (c) none of the exceptions under that subsection apply to this action.

7. The Court has personal jurisdiction over this action and venue is proper here

because Defendant is headquartered in this District, and because the improper conduct alleged 

herein occurred in, was directed from, and/or emanated from this District.

FACTUAL BACKGROUND

8. Defendant Motorola is an international manufacturer of cellular telephones and 

other mobile devices, with over $10 billion in revenue reported for fiscal year 2010 alone.

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9. While Defendant sells a variety of mobile devices, one of its most popular models 

in 2010 was the CLIQ XT. Defendant released the CLIQ XT on March 17, 2010, and has since 

sold hundreds of thousands of units to consumers nationwide. 

10. Like dozens of other mobile devices manufactured by numerous companies, the 

CLIQ XT utilizes the Android operating system created by Internet-giant Google.

11. A mobile device’s operating system, not unlike a traditional computer, is at the 

heart of the device and is a material aspect of a consumer’s choice to purchase and use a

particular device. The operating system not only acts as the primary interface and point of 

contact a user has with the device, but also contains all the primary features and operates the 

primary functions of the device. 

12. A material selling point for mobile devices that run the Android operating system 

is the operating system’s ability to run mobile applications.

13. In the mobile industry, operating systems are regularly upgraded to provide 

additional features and increase overall functionality. This has been a standard practice across all 

mobile phone manufactures. For example, the Apple iPhone has gone through at least four major 

upgrades and over two dozen minor upgrades over the last three years. 

14. As a phone’s operating system is upgraded, third party developers, including 

mobile application developers, also update their products to function correctly with the new 

system. Often times, as an operating system becomes more dated, new applications will be 

unable to function on it and instead, require that the mobile device utilize the most recent version 

of the operating system. While technology is constantly evolving, a reasonable consumer would 

expect a mobile device to remain compatible and up to date for at least the two-year span of a 

standard cellular service contract. 

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15. At the time of the CLIQ XT’s release in March of 2010, it came packaged with 

version 1.5 of the Android operating system — an outdated version that had been released 

approximately one year earlier, in May 2009.

16. At the time of the CLIQ XT’s release to the public, the most current available 

version of the Android operating system was version 2.1. Since the release of version 2.1, 

Google has upgraded its operating system with versions 2.2, 2.3, and eventually to version 4.0.

As of March 29, 2012, approximately .4% of all mobile phones utilizing the Android operating 

system were using version 1.5.

17. Motorola highlights the ability of the Android operating system to run and store 

applications, and represents through its website and marketing materials that the CLIQ XT would 

run and store most of the common and widely-used mobile applications through its operating 

system.

18. The current versions of many of the most popular Android mobile applications 

available today will not work on Android 1.5, including applications such as Facebook, 

MySpace, Gmail, Angry Birds, Dropbox, Google Maps, Google Goggles, Kindle, Wells Fargo, 

USA Today, CNN, Yahoo Mail, YouTube, Groupon, MSNBC, Fox News, NY Times, NPR 

News, My Verizon, Blockbuster, QuickOffice Pro, and numerous others.

19. Accordingly, any failure to update a device’s operating system can significantly 

hinder the function and capability of the device and quickly make it obsolete. 

20. Motorola directly markets and advertises its phones through print, online and 

television commercials, and additionally promotes its products through its own website, social 

media, and other mediums where it directly interacts with consumers about its phones’ features 

and benefits. Motorola’s statements through its social media accounts and website are meant to 

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be direct communications with current and prospective customers about its products, and are 

further meant to induce prospective customers to buy its phones and to encourage current 

customers to remain.

21. On or around March 31, 2010, and no later than April 13, 2010, Defendant 

announced on its website, through an upgrade chart, that, as it applied to the CLIQ XT, “Upgrade 

to Android 2.1 planned for Q2,” with the second quarter ending June 30, 2010. (See “Motorola 

Android Software Upgrade News” website screenshots, true and accurate copies of which are 

attached as Exhibit A). Defendant’s statement was a representation of a then existing material 

fact, and Defendant knew it to be false at the time it made the statement. 

22. This chart also listed several other Motorola devices, and their accompanying 

upgrade statuses, including “Upgrade to Android 2.1 for select countries/carriers is currently 

rolling out in stages,” “Upgrade to Android 2.1 planned for Q3” and “Upgrade under 

evaluation.” (See Exhibit A) (emphasis added). 

23. While the webpage containing the upgrade chart may have included purportedly

disclaiming language regarding a CLIQ XT upgrade, any such text—if it was displayed at all—

would have appeared at the very bottom of the webpage. Because all of the other information

regarding the CLIQ XT appeared at the top of the chart, and numerous phones appeared below it, 

any purportedly disclaiming language was fully “below the fold” and out of sight from the 

consumer. 

24. Accordingly, in order to actually view any language, a consumer would need to 

scroll down through multiple pages of other phones. However, as there was no visible indication 

at the top of the page that the language existed, and no reason was provided to consumers 

viewing the page to scroll down to its very bottom, the likelihood of a consumer who was 

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seeking information about the CLIQ XT ever seeing the disclaiming language (if it existed at all) 

was limited to no more than a chance encounter. 

25. Defendant intentionally and deceptively placed any type of disclaiming language 

in a difficult to find and unlikely to be viewed location so that consumers would not see it and 

therefore, would understand Defendant’s representations about impending upgrades as fact and 

not opinion or predictions.

26. On March 30, 2010, through Defendant’s customer support forum,2 a consumer 

asked, “I was just wondering if there is any update coming out for the xt or will we be getting the 

same 2.0 update as the cliq soon.” In response, Defendant stated through a Forum Manager, 

“This just in. CLIQ XT made it,” followed by a link to the update chart referenced above. (See

Defendant’s Support Forum Posts, true and accurate copies of which are attached as Exhibit B). 

27. By June 17, 2010, Defendant’s website still listed the CLIQ XT for a planned 

upgrade in the second quarter. (See Exhibit A). Defendant’s statement was a representation of a 

then existing material fact, and Defendant knew it to be false at the time it was made.

28. On June 30, 2010, Defendant stated through its official Twitter account:

“Continuing work on an upgrade for CLIQ/CLIQ XT to deliver even better experience and will 

 2 Defendant hosts and operates a customer support forum at:

https://supportforums.motorola.com. Within the support forums are several “threads” devoted to 

Defendant’s statements related to its general failure to provide an Android 2.1 update for the 

CLIQ XT. One such thread was entitled “CLIQ XT 2.1 T-Mobile upgrade – News” and had 

1,020,233 views and 5,586 comments (taking up 373 pages) before it was locked down due to its 

size, and a new thread was created in its place entitled “CLIQ XT 2.1 T-Mobile upgrade – News 

(Second Edition),” which itself presently has 222,400 views, 3,248 comments and occupied 217 

pages. (See supportforums.motorola.com/thread/31532 & supportforums.motorola.com 

/thread/41889). These forums are moderated and controlled by “Forum Managers” who 

periodically respond to consumer comments and make statements on the forums on behalf of 

Defendant. During the relevant time period, the forum mangers were named “Mark” and “Matt.”

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update on timing when we can.”3 (See “Motorola Twitter Posts,” true and accurate copies of 

which are attached at Exhibit C). 

29. On August 20, 2010, Defendant announced through its customer support forum 

that it was working on the 2.1 upgrade for the CLIQ XT and that it anticipated “providing the 

upgrade on each of these devices in the late Q3/early Q4 timeframe.” (Exhibit B). Additionally, 

Defendant stated through its customer support Forum Manager: “we’ve made a decision to take 

more time on the release to optimize the experience in some key areas. We will continue to work 

to deliver it as soon as possible and apologize that we have been unable to provide an upgrade to 

these users in Q2 as planned....” (Exhibit B).

30. On September 23, 2010, Defendant stated through its official Twitter account: 

“The CLIQ XT upgrade is slated for late Q3/early Q4.” (Exhibit C). Defendant’s statement was a 

representation of a then existing material fact, and Defendant knew it to be false at the time it 

was made.

31. On October 4, 2010, Defendant stated through its official Twitter account: “We 

are currently working to upgrade CLIQ and CLIQ XT to Android 2.1 in Q4. Apologies for any 

confusion.” (Exhibit C). 

32. On October 26, 2010, Defendant stated through its customer support Forum 

Manager: “CLIQ XT rollout now Q4. We’ll let you know when it goes into pre-release status.” 

(Exhibit B). Defendant’s statement was a representation of a then existing material fact, and 

Defendant knew it to be false at the time it was made.

 3 Defendant maintains an official Twitter account as a means to communicate with its 

customers and market its products to the public at http://twitter.com/Motorola. The account 

presently has 56,822 consumers following its posts and is publically available to consumers even 

without a Twitter account.

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33. On November 10, 2010, Defendant stated through its customer support Forum 

Manager: “We attempted to offer the upgrade in Q2 but an opportunity to further optimize the 

upgrade arose late in Q2 which delayed this to Q3 and then several factors in Q3 after openGL 

and JIT compiler implementation required our additional attention... Again we attempted to 

offer the upgrade in Early Q4 (October) but several circumstances have further contributed to a 

delay. We’re getting closer. I don't have a definite date yet but we’re close to pending approval 

from our business partners.” (Exhibit B) (emphasis added). Defendant’s statement was a 

representation of a then existing material fact, and Defendant knew it to be false at the time it 

was made.

34. On December 16, 2010, in reference to the 2.1 update, Defendant stated through 

its customer support Forum Manager: “Just for fun (no money), my bet is that the update WILL 

COME BEFORE CHRISTMAS!” (Exhibit B).

35. On December 22, 2010, Defendant changed its Software Update page to state, as 

it pertained to the CLIQ XT carried by T-Mobile, “Upgrade to Android 2.1 – additional testing in 

process; more details when available.” (Exhibit A). 

36. On January 25, 2011, CLIQ XT owners received an email offering “Upgrade your 

Motorola CLIQ XT now!” While most consumer’s believed this to be the long awaited upgrade 

to Android 2.1, in fact it was a marketing email promoting the release of Defendant’s CLIQ 2 

mobile device, the successor to the CLIQ XT. This new device came with Android 2.2.

37. On February 3, 2011, approximately ten months after the CLIQ XT was 

released and the first upgrade announcement was made, Defendant stated through its customer 

service Forum Manager, “... we have concluded that this device will remain on Android 1.5.”

(Exhibit B).

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38. In the ten months spanning March 2010 to February 2011, during which 

Defendant continued to release regular updates promising that the upgrade would happen soon, 

Defendant knew, or should have known, that the information was false and the upgrade would 

not likely occur. 

34. As of the date of this filing, Defendant has not upgraded the CLIQ XT operating 

system above Android 1.5. 

FACTS RELATING TO PLAINTIFF HAUGHT

35. Plaintiff Jack Haught purchased a Motorola CLIQ XT for approximately $100 in

or around June 30, 2010. At the time of purchase, Plaintiff was aware that his purchase was 

subject to a 30-day return period in which he could get a full refund or exchange the CLIQ XT 

for a different phone. Plaintiff was additionally aware of and viewed representations regarding 

the CLIQ XT’s technical features and capabilities, including Motorola’s representations that the 

CLIQ XT would run and store most commonly used mobile applications through its Android 

operating system.

36. Within one day of Plaintiff’s purchase of the CLIQ XT, he created a 

“MOTOBLUR” account through his phone and through Motorola’s website to provide services 

through his CLIQ XT. MOTOBLUR is a consumer service provided by Motorola that is

essential to the functioning of Defendant’s phones.

37. Additionally, Plaintiff’s CLIQ XT was under warranty with Motorola.

38. Through the process of setting up his MOTOBLUR account while on Defendant’s 

website, Plaintiff sought out information about the CLIQ XT and was directed to Motorola’s 

online forums. While there, Plaintiff viewed specific representations, inclusive of those described 

in this Complaint, made by Defendant’s forum managers, “Matt” and “Mark,” regarding the 

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imminent upgrade of the CLIQ XT set to occur in the second quarter of 2010, which ended on 

June 30th. Plaintiff additionally viewed the upgrade chart substantially similar to the charts 

described in this Complaint, which was linked from Defendant’s forum posts that confirmed that 

the upgrade was set to occur in the second quarter of 2010. Defendant’s statements were 

representations of then existing material facts, and Plaintiff understood them to mean that the 

CLIQ XT would, without question, be upgraded, and that the only remaining issue was exactly 

when the upgrade would occur. Plaintiff was acting reasonably under the circumstances and 

based on the information presented to him by Defendant. 

39. Plaintiff Haught relied on the online representations related to the upgrade and 

CLIQ XT’s features and capabilities in choosing not to return the CLIQ XT during the return 

period. 

40. Because Defendant’s representations and omissions were made to Plaintiff during 

his return period, they were one and the same with any statements made and relied upon at the 

time Plaintiff purchased the phone.

41. Plaintiff’s CLIQ XT eventually malfunctioned and it was replaced directly by 

Motorola per the CLIQ XT’s warranty. 

42. By purchasing a Motorola brand phone, and contractually engaging each other 

through MOTOBLUR, Plaintiff’s warranty, and generally through the information and services 

provided by Motorola’s website, Plaintiff and Motorola entered into a business-to-consumer 

relationship.

43. But for the representations made by Defendant related to the upgrade to Android 

2.1 and the CLIQ XT’s ability to run and store commonly used applications, Plaintiff Haught 

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would have returned the CLIQ XT and received a full refund or exchanged it for a different

phone. 

44. Within one year of Plaintiff purchasing the CLIQ XT, his phone became outdated 

and incompatible with a variety of popular mobile applications. Specifically, Plaintiff wanted to, 

but could not, use such applications as Chase Bank (where Plaintiff had his primary checking 

accounts), KeyRing, Fifth Third Bank, Mint.com, The Weather Channel, AccuWeather, 

KAYAK, AMEX, Discover, Multiple Sclerosis Diagnosis, Columbus Dispatch, apps related to 

airlines such as United Airlines and Delta, and various hockey related apps, including NHL 

Game Center. By December 2010, almost all of the mobile applications that Plaintiff wanted to 

use were incompatible with his CLIQ XT, and throughout 2011, Plaintiff’s CLIQ XT failed to 

provide almost any of the promised and expected features beyond its basic functionality. 

45. Plaintiff was injured and lost money in the form of the fee paid to purchase his 

CLIQ XT, by not returning the phone during his return period, by paying more for a phone than 

he otherwise would have had he known the CLIQ XT would never receive an upgrade, and 

paying for a phone that did not perform and provide the services Plaintiff was promised. 

CLASS ALLEGATIONS

46. Plaintiff Haught brings this action pursuant to Fed. R. Civ. P. 23(b)(2) and (b)(3), 

on behalf of himself and a class of similarly situated individuals (the “Class”) defined as follows:

All individuals and entities in the United States who purchased a Motorola CLIQ 

XT prior to February 2, 2011. 

Excluded from the Class are (1) Defendant, its legal representatives, assigns, and successors, and 

any entity in which Defendant has a controlling interest, (2) the Judge or Magistrate Judge to 

whom this case is assigned and the Judge’s or Magistrate Judge’s immediate family, (3) persons 

who execute and file a timely request for exclusion, (4) persons whose claims in this matter have 

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been finally adjudicated on the merits or otherwise released, and (5) the legal representatives, 

successors, or assigns of any such excluded person.

47. Numerosity: The exact number of Class members is unknown and not available 

to Plaintiff, but on information and belief, Defendant has sold its CLIQ XT to thousands of Class 

members throughout the country, making joinder of each individual member impracticable. 

Ultimately, Class members can be identified through Defendant’s records.

48. Typicality: Plaintiff’s claims are typical of the claims of the other members of the 

Class, as Plaintiff and the other members sustained damages arising from Defendant’s uniform 

wrongful conduct, based upon the same types of transactions that were made repeatedly with 

Plaintiff and the members of the Class.

49. Adequate Representation: Plaintiff will fairly and adequately represent and 

protect the interests of the Class, and has retained counsel competent and experienced in class 

actions. Plaintiff has no interest antagonistic to those of the Class, and Defendant has no defenses 

unique to Plaintiff. 

50. Commonality and Predominance: There are many questions of law and fact 

common to the claims of Plaintiff and the Class. Those questions predominate over any 

questions that may affect individual members of the Class. Common questions for the Class

include, but are not necessarily limited to the following:

a) Whether Defendant intentionally misrepresented and/or concealed the fact 

that it would not offer an operating system upgrade for the CLIQ XT;

b) Whether Defendant’s conduct described herein constitutes a violation of 

the Illinois Consumer Fraud and Deceptive Business Practices Act (815 

ILCS § 505/1, et seq.);

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c) Whether Defendant’s conduct described herein constitutes fraud by 

omission; and

d) Whether Defendant’s conduct described herein resulted in unjust 

enrichment to Defendant.

51. Superiority: This class action is appropriate for certification because class 

proceedings are superior to all other available methods for the fair and efficient adjudication of 

this controversy and joinder of all members of the Class is impracticable. The damages suffered 

by the individual members of the Class will likely be small relative to the burden and expense of 

individual prosecution of the complex litigation necessitated by Motorola’s wrongful conduct.

Thus, it would be virtually impossible for the individual members of the Class to obtain effective 

relief from Motorola’s misconduct. Even if members of the Class could sustain such individual 

litigation, it would not be preferable to a class action because individual litigation would increase 

the delay and expense to all parties due to the complex legal and factual controversies presented 

in this Complaint. By contrast, a class action presents far fewer management difficulties and 

provides the benefits of single adjudication, economy of scale, and comprehensive supervision 

by a single court. Economies of time, effort, and expense will be fostered and uniformity of 

decisions will be ensured.

52. Policies Generally Applicable to the Class: This class action is also appropriate 

for certification because Motorola has acted or refused to act on grounds generally applicable to 

the Class, thereby requiring the Court’s imposition of uniform relief to ensure compatible 

standards of conduct toward the members of the Class, and making final injunctive relief 

appropriate with respect to the Class as a whole. Motorola’s policies challenged herein apply and 

affect members of the Class uniformly and Plaintiff’s challenge of these policies hinges on 

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Motorola’s conduct with respect to the Class as a whole, not on facts or law applicable only to 

Plaintiff. Motorola has acted and failed to act on grounds generally applicable to Plaintiff and the 

other members of the Class, requiring the Court’s imposition of uniform relief to ensure 

compatible standards of conduct toward members of the Class.

53. Plaintiff reserves the right to revise the foregoing “Class Allegations” based on 

facts learned in discovery.

FIRST CAUSE OF ACTION

Violation of the Illinois Consumer Fraud and Deceptive Business Practices Act

(815 ILCS §§ 505/1, et seq.)

54. Plaintiff incorporates by reference the foregoing allegations as if fully set forth 

herein.

55. The Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”) 

(815 ILCS § 505/1, et seq.) protects both consumers and competitors by promoting fair 

competition in commercial markets for goods and services.

56. The ICFA prohibits any unlawful, unfair, or fraudulent business acts or practices 

including, the employment of any deception, fraud, false pretense, false promise, false 

advertising, misrepresentation, or the concealment, suppression, or omission of any material fact.

57. The ICFA applies to Defendant’s actions and conduct as described herein because 

it protects consumers in transactions that are intended to result, or which have resulted, in the 

sale of goods or services.

58. Defendant is a “person” as defined under section 505/1(c) of the ICFA. 

59. Plaintiffs and each member of the Class are “consumers” as defined under section 

505/1(e) of the ICFA. 

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60. The CLIQ XT mobile device is “merchandise” within the meaning of section 

505/1(b) and its sale is considered “trade” or “commerce” under the ICFA.

61. Defendant violated the ICFA by representing that it would upgrade the operating 

system on the CLIQ XT to Android version 2.1, and concealing the fact that it was unwilling or 

unable to do so. 

62. An upgraded operating system for the CLIQ XT is and was a material selling 

point of the mobile device, and a primary reason to continue to use the device over other 

alternatives. Plaintiff and Class Members relied on the representations made by Defendant about 

the impending upgrade to Android 2.1 when purchasing and/or not returning the CLIQ XT.

63. Defendant’s misrepresentations were such that a reasonable consumer would have 

considered them to be material in deciding whether to purchase Defendant’s CLIQ XT mobile 

device, whether to return an already purchased CLIQ XT, or to pay a lesser price. Had Plaintiff 

and the Class known of Defendant’s inability or unwillingness to upgrade the CLIQ XT 

operating system to Android 2.1, they would not have purchased the CLIQ XT, would have 

returned their CLIQ XT for a refund, or would have paid less for it.

64. Defendant further represented that the CLIQ XT would have the characteristic 

and benefit of being able to run and store commonly used mobile applications through its 

operating system.

65. As Plaintiff’s CLIQ XT cannot run and store commonly used mobile applications 

through its operating system, Defendant’s representation was false and misleading and 

constitutes further violation of the ICFA.

66. By representing that it would upgrade the operating system on the CLIQ XT to 

Android version 2.1, failing to disclose, and concealing the fact that it was unwilling or unable to 

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upgrade the operating system on the CLIQ XT to Android version 2.1, and representing that the 

CLIQ XT had the ability to run and store commonly used mobile applications when it did not, 

Defendant violated section 510/2(a) of the ICFA. That is, Defendant represented that the CLIQ 

XT had characteristics and benefits that it did not have, and represented that the CLIQ XT was of 

a particular standard, quality or grade when it was of another. 

67. Based upon Defendant’s misrepresentations and omissions described herein,

Plaintiff and the Class reasonably expected that the CLIQ XT would be upgraded to the Android 

2.1 operating system and would have the ability to run and store mobile applications. These are

reasonable and objective consumer expectations for Defendant’s mobile devices.

68. Plaintiff and the Class reasonably relied upon Defendant’s misrepresentations and 

omissions by paying to purchase Defendant’s CLIQ XT mobile device, not returning the device, 

and/or not paying a lower price to purchase it.

69. Defendant intended that Plaintiff and the Class would rely on its 

misrepresentations and omissions when deciding whether to purchase, return, or pay less for a 

CLIQ XT.

70. Defendant’s false representations about the timing and existence of an operating 

system upgrade for the CLIQ XT was an act likely to mislead Plaintiff and the members of the 

Class acting reasonably under the circumstances, and constitutes an unfair and deceptive trade 

practice in violation of the ICFA.

71. Defendant’s false representations about the characteristics and benefits of the 

CLIQ XT was an act likely to mislead Plaintiff and the members of the Class acting reasonably

under the circumstances, and constitutes an unfair and deceptive trade practice in violation of the 

ICFA.

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72. Section 510/2 of the ICFA prohibits the use of false advertising. Specifically, it 

prohibits the advertisement of goods or services with the intent not to sell them as advertised. 

73. Defendant engaged in advertising and marketing to the public, and offered for 

sale the CLIQ XT on a nationwide basis. Defendant publically represented and advertised that it 

would upgrade the CLIQ XT to the Android 2.1 operating system. Defendant did so with the 

intent to induce Plaintiff and the Class to purchase and continue using the CLIQ XT.

74. Defendant’s advertising and marketing statements were and are untrue or 

misleading and likely to deceive members of the public in that they portrayed the existence of a 

technical capability and benefit that Defendant knew or should have known it was unwilling or 

unable to deliver. 

75. Defendant knew or should have known that its statements were false and 

misleading at the time that it made them and therefore, were in violation of the ICFA.

76. The ICFA also prohibits any other deceptive conduct that creates a likelihood of 

confusion or misunderstanding.

77. Defendant’s representations that the CLIQ XT would be upgraded to the Android 

2.1 operating system, when in fact it would not, is deceptive conduct that created confusion and 

misunderstanding for Plaintiff and the Class.

78. Likewise, Defendant’s representations that the CLIQ XT could run and store 

commonly used mobile applications through its operating system, when in fact it could not, is 

deceptive conduct that created confusion and misunderstanding for Plaintiff and the Class.

79. As a direct and proximate result of Defendant’s violation of the ICFA, Plaintiff 

and each Class member have suffered harm in the form of monies paid to Defendant. Plaintiff, 

on behalf of himself and the Class, seeks an order (1) requiring Defendant to cease the unfair 

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practices described herein; (2) awarding damages, interest, and reasonable attorneys’ fees, 

expenses, and costs to the extent allowable; and/or (3) requiring Defendant to restore to Plaintiff 

and each Class member any money acquired by means of unfair competition (restitution). 

SECOND CAUSE OF ACTION

Fraud by Omission

80. Plaintiff incorporates by reference the foregoing allegations as if fully set forth 

herein.

81. Based on Defendant’s misrepresentations and omissions, Plaintiff and the Class 

reasonably expected the CLIQ XT to be upgraded to the Android 2.1 operating system. This is a

reasonable and objective consumer expectation for Defendant’s mobile devices.

82. Defendant knew that it was unable or unwilling to upgrade the CLIQ XT to the 

Android 2.1 operating system.

83. Defendant concealed from and failed to disclose to Plaintiff and the Class its 

inability or unwillingness to upgrade the CLIQ XT operating system to Android 2.1.

84. Likewise, Defendant failed to disclose that the CLIQ XT would not run or store 

commonly used mobile applications through its operating system without such an upgrade.

85. Defendant was under a duty to Plaintiff and the Class to disclose its inability or 

unwillingness to upgrade the CLIQ XT to Android 2.1, and the device’s inability to run or store 

commonly used mobile applications without the upgrade, because:

a) Defendant was in a superior position to know the true state of facts 

about the upgrade ability or potential for the CLIQ XT;

b) Plaintiff and the Class could not reasonably have been expected to learn or 

discover that Defendant was unable or unwilling to upgrade the CLIQ 

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XT’s operating system; 

c) Defendant knew that Plaintiff and the Class could not reasonably have 

been expected to learn or discover the upgrade issues;

d) Defendant directly marketed and communicated with Plaintiff and the 

Class through its website, and specifically engaged Plaintiff and the Class 

for the purpose of inducing prospective customers to purchase a phone and

to retain existing customers;

e) Defendant’s omissions made through its website and Twitter account were 

meant to result in the sale of its CLIQ XT mobile device; and,

f) Defendant was required by the provisions of the ICFA to honestly and 

accurately disclose material information related to the CLIQ XT, or, at the 

very least, not to intentionally conceal it. 

86. The facts concealed or not disclosed by Defendant to Plaintiff and the Class are 

material in that a reasonable consumer would have considered them to be important in deciding 

whether to purchase Defendant’s CLIQ XT mobile device, whether to return an already 

purchased CLIQ XT, or whether to pay a lesser price for it. 

87. Had Plaintiff and the Class known of Defendant’s inability or unwillingness to 

upgrade the CLIQ XT operating system to Android 2.1, and that the CLIQ XT would be unable 

to run or store commonly used mobile applications without such an upgrade, they would not 

have purchased the CLIQ XT, would have returned an already purchased CLIQ XT, or would 

have paid less for it.

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88. Defendant concealed or failed to disclose the true nature of its ability or 

willingness to upgrade the CLIQ XT operating system to Android 2.1 in order to induce Plaintiff 

and the Class to act thereon. 

89. Plaintiff and the Class justifiably relied on Defendant’s omissions to their 

detriment by purchasing the CLIQ XT, not returning the CLIQ XT, and/or not paying a lesser 

price for it. 

90. As a direct and proximate result of Defendant’s misconduct, Plaintiff and the 

Class have suffered actual damages in the form of monies paid to purchase the CLIQ XT, as well 

as the difference in value between a CLIQ XT with Android 2.1 and one with Android 1.5.

THIRD CAUSE OF ACTION

Restitution/Unjust Enrichment

91. Plaintiff incorporates by reference the foregoing allegations as if fully set forth 

herein.

92. Plaintiff and the Class have conferred a benefit upon Defendant. Defendant has 

received and retained money belonging to Plaintiff and the Class as a result of its unlawful and 

deceptive practices alleged herein.

93. Defendant appreciates or has knowledge of said benefit.

94. Under principles of equity and good conscience, Defendant should not be 

permitted to retain the money belonging to Plaintiff and the Class that it unjustly received as 

result of its actions.

95. Plaintiff and the Class have suffered financial loss as a direct result of 

Defendant’s conduct.

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96. Plaintiff, on his own behalf and on behalf of the Class, seeks restitution and 

disgorgement of the monies Defendant received as a result of its conduct described herein, as 

well as interest, to the extent allowable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff Jack Haught, on behalf of himself and the Class, respectfully 

requests that this Court issue an order:

a. Certifying this case as a class action on behalf of the Class defined above, 

appointing Jack Haught as class representative, and appointing his counsel as class counsel;

b. Declaring that Defendant’s actions, as set out above, constitute violations of the 

ICFA (815 ILCS §§ 505/1, et seq.), fraud by omission, and unjust enrichment;

c. Awarding Plaintiff and the Class all appropriate damages;

d. Awarding the injunctive relief necessary to ensure that Defendant’s conduct

alleged herein does not continue into the future;

e. Awarding Plaintiff and the Class restitution in the form of complete disgorgement 

of all revenue derived from sales of the CLIQ XT mobile device;

f. Awarding Plaintiff and the Class their reasonable litigation expenses and 

attorneys’ fees;

g. Awarding Plaintiff and the Class pre- and post-judgment interest, to the extent 

allowable;

h. Entering such other injunctive and/or declaratory relief as necessary to protect the 

interests of Plaintiff and the Class; and

i. Awarding such other and further relief as equity and justice may require.

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JURY TRIAL

Plaintiff demands a trial by jury for all issues so triable.

Respectfully submitted,

Dated: April 5, 2012 JACK HAUGHT, individually and on behalf of all 

others similarly situated,

By: /s/ Christopher L. Dore

One of Plaintiff’s Attorneys

Rafey S. Balabanian

Christopher L. Dore

Benjamin H. Richman 

EDELSON MCGUIRE LLC

350 North LaSalle Street, Suite 1300

Chicago, Illinois 60604

Telephone: (312) 589-6370

Facsimile: (312) 589-6378

rbalabanian@edelson.com

cdore@edelson.com

brichman@edelson.com

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EXHIBIT A

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APRIL 13,&2010

JUNE&17,&2010

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DECEMBER&22,&2010

FEBRUARY&22,&2011

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EXHIBIT B

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EXHIBIT C

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