jamin s. soderstrom, bar no. 261054 2 … · 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 coxcom, llc,...

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THIRD AMENDED CLASS ACTION COMPLAINT

1

Jamin S. Soderstrom, Bar No. 261054 [email protected] SODERSTROM LAW PC 3 Park Plaza, Suite 100 Irvine, California 92614 Tel: (949) 667-4700 Fax: (949) 424-8091

Counsel for Plaintiff and the Proposed Class

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

(SOUTHERN DIVISION – SANTA ANA)

DAVID ERHMAN, individually and on behalf of all others similarly situated,

Plaintiff,

v.

COX COMMUNICATIONS, INC., COXCOM, LLC, COX COMMUNICATIONS CALIFORNIA, LLC, and DOES 1 through 25,

Defendants.

Case No. 8:18-cv-01125-JVS-DFM

THIRD AMENDED CLASS ACTION COMPLAINT

[FILED IN AAA ARBITRATION]

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2 THIRD AMENDED CLASS ACTION COMPLAINT

Plaintiff DAVID EHRMAN (“Plaintiff”), brings this action against Defendants

COX COMMUNICATIONS, INC., COXCOM, LLC, COX COMMUNICATIONS

CALIFORNIA, LLC, and DOES 1 through 25 (collectively, “Defendants”), and alleges

as follows:

JURISDICTION & VENUE

1. This action is brought by Plaintiff individually and on behalf of a class of

similarly situated consumers in California during the relevant time periods. The Court

has general jurisdiction over this action under Code Civ. Proc., § 410.10. The amounts

of damages sought by Plaintiff exceed the jurisdictional minimum and will be established

according to proof at trial. 2. Venue is proper under Code Civ. Proc., §§ 395 and 395.5, because one or

more Defendants resides in this county and because a substantial portion of the events

forming the basis of this action occurred in this county.

PARTIES

3. Plaintiff DAVID EHRMAN is a resident of California. Plaintiff is a

consumer who has in the past and currently receives and pays for residential Internet

services from Defendants. Plaintiff has purchased and continues to purchase Defendants’

residential Internet services in reliance on Defendants’ advertisements and related

statements concerning the speed, functionality, and reliability of Defendants’ residential

Internet services. Plaintiff purchased Defendants’ “Premier” high speed Internet services

from June 2013 to August 2016, Defendants’ “Ultimate” high speed Internet services

from August 2016 to December 2018, and Defendants’ “Gigablast” high speed Internet

services from December 2018 to the present. Defendants’ promised to provide Plaintiff

and his family fast and reliable Internet speeds for all their devices. Plaintiff and his

family and friends typically connect to the Internet at Plaintiff’s home using multiple

Internet-capable devices, most of which rely on a wireless or “WiFi” Internet connection.

Plaintiff and his family and friends perform numerous activities using Defendants’

residential Internet services, including using the Internet for work, social, educational,

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and entertainment purposes, and downloading and uploading content and streaming

videos. Plaintiff pays more money for Defendants’ higher speed Internet services because

he and his family want (and in some instances need) to achieve higher Internet speeds

than Plaintiff believes Defendants’ plans that promise lower Internet speeds will provide.

Plaintiff also pays more money for Defendants’ Internet services based on Defendants’

representation that there is “no contract.”

4. Defendant COX COMMUNICATIONS, INC. (“COX

COMMUNICATIONS”) is a corporation doing business in California. COX

COMMUNICATIONS advertises, sells, and provides residential Internet services to

Plaintiff and other consumers in California.

5. Defendant COXCOM, LLC (“COXCOM”) is a limited liability company

doing business in California. Upon information and belief, COX COMMUNICATIONS

is the sole member of COXCOM.

6. Defendant COX COMMUNICATIONS CALIFORNIA, LLC (“COX

CALIFORNIA”) is a limited liability company doing business in California. Upon

information and belief, COXCOM is the sole member of COX CALIFORNIA.

7. Plaintiff does not know the true names or capacities, whether individual or

corporate, of defendants sued as DOES 1 through 25 and, for that reason, sues such

defendants under fictitious names. Plaintiff is informed and believe that each DOE

defendant was responsible in some respect for the violations alleged herein and

proximately caused Plaintiff and other similarly situated consumers to be subject to

unlawful and unfair business practices and to suffer harm. Plaintiff will seek leave to

amend as and when the true names and capacities of each DOE defendant become known.

DEFENDANTS’ UNLAWFUL CONDUCT

8. Defendants advertise, sell, and provide residential Internet services to

Plaintiff and other consumers in California. Defendants’ advertisements and related

statements promise consumers they can reliably achieve specific Internet speeds that are

priced and sold based on the highest megabits per second (“mbps”) download speed

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promised in connection with each plan. Defendants know they do not and cannot deliver

on their promises.

9. Defendants’ advertisements and related statements concerning the Internet

speeds offered and sold to Plaintiff and similarly situated consumers in California include

specific promises and involve material omissions.

10. First, Defendants’ advertisements and related statements specifically state

and emphasize the highest Internet speed promised by each plan. For example, “Essential

30” promises speeds of up to 30 mbps. “Preferred 100” promises speeds of up to 100

mbps. “Premier” promises speeds of up to 150 mbps. “Ultimate” promises speeds of up

to 300 mbps. “Gigablast” promises speeds of up to 1000 mbps. Some of Defendants’

advertisements and related statements note the “up to” nature of the highest promised

Internet speeds:

Exhibit 3 (excerpt of Cox website showing “Up to” highest advertised speeds).1 Some of

Defendants’ advertisements and related statements emphasize only the highest promised

speeds:

1 Defendants’ Internet, television, and similar advertisements and related statements are exclusively in Defendants’ possession and are transient in nature (e.g., Plaintiff does not possess real-time screenshots of Defendants’ historic Internet advertisements and related statements that he and other consumers viewed and relied on during the class period). The attached exhibits are thus included for illustrative purposes.

How fast is Cox High Speed Internet? Cox Internet Gigablast Cox Interne t Ult imate Cox Internet Prefer red 100

~ Surf & stream over 9 ~ Surf & stre:im on 7-9 ~ Surf & strea m on 5-7 devices devices devices • Up to 1 Gbps download • Up to 300 Mbps download • Up to 100 Mbps down load - - -0 Download t ime: 1 H D Video 0 Do\Vnload time: 1 HD Video 0 Download time: 1 HDVideo

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Exhibit 4 (excerpt of Cox website showing highest promised speeds without “Up to”).

11. Defendants know their highest promised Internet speeds are unattainable for

most customers. Defendants’ knowledge of the false and misleading nature of their

highest promised Internet speeds advertisements and related representations is based on

their knowledge of their network, infrastructure, and equipment capabilities, and based

on their knowledge of the differences between wired and wireless Internet connections

and the ways in which customers use Defendants’ services.

12. Specifically, Defendants know that most customers will never achieve the

highest promised Internet speeds unless the customers use Defendants’ Internet services

in specific ways that are nothing like the ways in which customers ordinarily use

Defendants’ Internet services and how Defendants’ portray their services in their

advertisements.

13. Buried on Defendants’ website are instructions—which most customers will

never see and which all customers never see before purchasing Defendants’ services—

that show Defendants know customers cannot achieve the highest advertised Internet

speeds except in specific circumstances that are not similar to how customers actually

used Defendants’ services:

0 1 Acf ity I Gigablast n 1ne IV g. d"vm!< Ultimate 300 I Preferred 1 OD

7-9d.,.,,ces S-7 dev1ces Essennal 30 I Starter 10

3-5 Oev1Ces 1-2 devtces

Light Web Surfing ., ., ., ., ., Send ing/Receiving Email ., ., ., ., Music Stream ing ., ., ., ., Light Video Streaming and Gaming ., ., ., Managing Large Files ., ., Multiple HD Video Streaming and Gaming ., ., 4K Video Streaming and 4K Gaming ., HD Video Calling .,

G1gablas1 i, available m select cox markets. see G,gablast pricing and check ava1lab1l1iy. Don·t see ~urplan?V1ew grandfa1hered cox Internet plans,

Cox Internet Speed Test Check: tllle speed! of yom d.evice's connecti:on to the lllltemet and explore steps you call take

to ·mprove performance. for the speed test to prov1ide the most accurate results, use a computer 'Nitlll1 a Wired! (Ethernet), collnectioll , tum off Wl"fi, an.d close a.Ill otller programs Oil

yom computer. Get more tips >

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Exhibit 5 (excerpt from Cox website). Defendants actually instruct customers to “connect

your computer directly to your modem with an Ethernet cable,” “Turn off WiFi on your

computer,” and “Close all other programs, applications, and browser tabs on your

computer to eliminate network congestion.” Id. (step-by-step instructions). These behind-

the-scenes instructions on what customers need to do to actually achieve the promised

Internet speeds stand in stark contrast to Defendants’ advertisements which emphasize

customers’ ability to achieve the highest promised Internet speeds on multiple devices

using wireless or WiFi Internet connections.

14. Second, Defendants’ advertisements and related statements emphasize that

consumers will reliably achieve the highest advertised Internet speeds. Defendants

emphasize the reliable nature of their promised speeds by telling customers that the plans

they offer will meet all their needs. Exhibit 6 (excerpt of Cox website “Speed Advisor”).

In behind-the-scenes instructions most customers never see, Defendants admit they do

not guarantee customers will achieve the highest advertised Internet speeds “100% of the

time,” but using 100% as a reliability benchmark strongly suggests that customers can

expect to achieve the highest advertised Internet speeds most of the time even if they are

not guaranteed to achieve such speeds all of the time. Exhibit 5.

15. Defendants know that most consumers will not reliably achieve the highest

promised Internet speeds—if they can ever achieve such speeds—based on their

knowledge of their network, infrastructure, and equipment capabilities, and based on

their knowledge of the differences between wired and wireless Internet connections and

the ways in which customers use Defendants’ services.

16. Third, Defendants’ advertisements and related statements emphasize that

consumers will reliably achieve the advertised speeds on all their devices and,

specifically, on devices that use wireless or WiFi Internet connections. Exhibit 3; Exhibit

4; Exhibit 5; Exhibit 6. Defendants use the term “devices” in their advertisements and

related representations to indicate Internet capable equipment that always or typically is

used without being physically connected to a modem or router (e.g., connected via an

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Ethernet cord). Defendants’ Internet and television advertisements specifically

emphasize the wireless nature of their Internet services and how most consumers use

their services by using pictures and videos that show consumers using smartphones,

tablets, and laptop computers that are relying on wireless Internet connections. Exhibit 7

(brochure posted on Cox website).

17. Defendants know that most consumers will not reliably achieve the highest

promised Internet speeds on all of their devices (or any of the devices). Specifically,

Defendants know that when customers use smartphones, tablets, laptop computers, or

other devices that rely on wireless or WiFi Internet connections, they will consistently

achieve speeds far below the highest promised Internet speeds emphasized in their

advertisements and related statements. Defendants knowledge of the false and misleading

nature of their promised Internet speeds is based on their knowledge of their network,

infrastructure, and equipment capabilities, and based on their knowledge of the

differences between wired and wireless Internet connections and the ways in which

customers use Defendants’ services.

18. Fourth, Defendants’ advertisements and related statements affirmatively

state that their Internet services are being offered with “no contract.” Defendants

emphasize the fact that there is “no contract” associated with their Internet services to get

consumers to believe they are simply entering into a basic pay-for-service transaction

with no risk and no catch.

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Exhibit 8 (excerpt of Cox online advertisement). Consumers can agree to a contract if

they prefer to pay a lower price, but Defendants emphasize the “no contract” option to

present the appearance of a simple purchase with no behind-the-scenes terms.

19. Defendants completely disregard their “no contract” promise to consumers,

however, and seek to impose numerous contract terms beyond simply a pay-for-service

relationship on all customers, including customers who believed and relied on the “no

contract” promise and paid more for Defendants’ services understanding that the only

obligation was to pay their bills.

20. Plaintiff relied on all of Defendants’ promises and material omissions to his

detriment. Plaintiff purchased Defendants’ “Premier” high speed Internet services

between June 2013 and August 2016 and was promised speeds of 50 mbps, 100 mbps,

and 150 mbps;2 he purchased Defendants’ “Ultimate” high speed Internet services

between August 2016 and December 2018 and was promised speeds of 300 mbps; and

he has purchased Defendants’ “Gigablast” high speed Internet services since December

2 Defendants periodically increased the promised speeds of the “Premier” services and also periodically increased the price of its “Premier” services.

COX High Speed Internet"' C"')(.

BLAZING SP EED

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2018 and has been promised speeds of 1000 mbps. Each time he paid for Defendants’

Internet services, Plaintiff relied on Defendants’ promises that he would reliably achieve

the highest advertised Internet speed on all his and his family’s devices, including

specifically the devices that rely on a wireless Internet connection. Plaintiff’s reliance

was justified, but the actual performance of Defendants’ Internet services did not and

does not fulfill any of their promises. Exhibit 9 (speed test result showing Plaintiff could

only achieve around 10% of Defendants’ promised speeds during non-peak hours);

Exhibit 10 (same). Additionally, Plaintiff relied on Defendants’ promise that by paying

more for Defendants’ services there would be “no contract.” Again, Plaintiff’s reliance

was justified, but Defendants still intended to impose numerous undisclosed contract

terms against him.

21. Fifth, in August 2018, Plaintiff learned for the first time that a “Residential

Customer Service Agreement” (“Agreement”) is posted on Defendants’ website. Plaintiff

was not previously aware of the Agreement, any prior versions of the Agreement, or other

agreements posted on Defendants’ website. Plaintiff learned the Agreement contained an

arbitration clause and gave him opt out rights. Plaintiff complied with the Agreement’s

instructions and sent an email to Defendants’ designated email address exercising his

contractual right to opt out of any arbitration obligations. See Exhibit 11 (opt out email).

Plaintiff remained Defendants’ customer thereafter and thus agreed to the enforceable

provisions of the Agreement, subject to his arbitration opt out.

22. Defendants include several unconscionable and unenforceable provisions in

the Agreement. These provisions purport to exculpate or improperly shield Defendants

from liability for their unlawful and fraudulent conduct (Section 15), to waive consumers’

right to seek remedies that are recoverable by statute (Section 15), and to disclaim on the

back-end representations that Defendants make in their up-front advertisements and

statements (Section 1; Section 14). See Exhibit 12 (printed copy of the 2018 version of

the Agreement). These provisions are both procedurally and substantively

unconscionable and are unenforceable in whole or in part.

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CLASS ACTION ALLEGATIONS

23. Plaintiff brings this action as a class action under Cal. Code Civ. Proc. § 382

on behalf of all consumers in California who paid for Defendants’ residential Internet

services within four years from the date this action was filed.

24. The members of the class are so numerous that joinder of all class members

is impracticable. Plaintiff estimates that there are at least tens of thousands of putative

class members.

25. Plaintiff reserves the right to amend the following class and subclass

definitions, and propose other appropriate classes or subclasses, before the Court

determines whether class certification is appropriate, or thereafter upon leave of Court:

Proposed Internet Purchaser Class

All individual consumers in California who purchased

Defendants’ residential Internet services during the relevant time

period.

Proposed “No Contract” Subclass

All individual consumers in California who purchased

Defendants’ residential Internet services during the relevant time

period and who paid a higher “no contract” price.

26. Excluded from the proposed class are Defendants and their parents,

subsidiaries, affiliates, officers, and directors; all consumers who make a timely election

to be excluded from this proceeding using the correct opt-out protocol; any and all

federal, state, or local governments; and all judges assigned to hear any aspect of this

litigation and their immediate family members.

27. Common questions of law and fact exist include, but are not limited to:

a. whether Defendants made false, misleading, deceptive, untrue, or unfair

statements in their advertisements related to residential Internet speeds and

reliability;

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b. whether Defendants omitted material information from their advertisements

and related statements related to residential Internet speeds and reliability;

c. whether Defendants advertised “no contract” services but still sought to

impose contracts on consumers;

d. whether Defendants properly disclosed that their network, infrastructure,

and/or equipment was incapable of consistently supporting the promised

Internet speeds, reliability, and performance;

e. whether certain provisions in Defendants’ Agreement are exculpatory,

unconscionable, and unenforceable; and

f. whether Defendants’ conduct was knowing and intentional.

28. Plaintiff is a member of the proposed class he seeks to represent and Plaintiff

suffered harm and damages as a result of Defendants’ conduct alleged herein.

29. Plaintiff’s claims are typical of the claims of other class members and

Plaintiff has the same interests as the other members of the class.

30. Plaintiff will fairly and adequately represent and protect the interests of the

class. Plaintiff has retained able counsel experienced in complex and consumer class

action litigation. Plaintiff’s interests are not antagonistic to the interests of other class

members.

31. The questions of fact and law common to Plaintiff and members of the class

and subclasses predominate over any questions affecting only individual members.

32. A class action is superior to other available methods for the fair and efficient

adjudication of this controversy because joinder of all class members is impractical.

Moreover, since the damages suffered by individual class members may be relatively

small, the expense and burden of individual litigation makes it practically impossible for

the class members to individually redress the wrongs committed against them.

33. The class and appropriate subclasses are readily definable and ascertainable

based on Defendants’ records, and prosecution of this action as a class action will

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eliminate the possibility of repetitive litigation. There will be no difficulty in the

management of this action as a class action.

CAUSES OF ACTION

Count One

Common Law Fraud and Misrepresentation

34. Plaintiff incorporates all prior paragraphs.

35. Defendants have represented and continue to represent in their

advertisements and related statements in print, online, and on television that consumers

will reliably achieve Defendants’ highest advertised Internet speeds promised in

connection with each service plan (e.g., 30 mbps, 50 mbps, 100 mbps, 150 mbps, 300

mbps, and 1000 mbps). Defendants emphasize consumers can achieve such speeds using

wireless connections and multiple devices. Defendants make these representations using

both statements (e.g., “300 mbps”) and pictures showing consumers using wireless

devices in their homes. Defendants omit from their representations material information

related to the limited ways in which consumers must use Defendants’ services in order

to actually and reliably achieve Defendants’ highest advertised speeds.

36. Defendants also have represented and continue to represent in their

advertisements and related statements in print, online, and on television that consumers

purchased Defendants’ Internet services with “no contract” unless the consumers

explicitly agreed otherwise. Defendants omit from their representations material

information related to Defendants’ intent to impose contract terms on all customers.

37. Defendants’ representations and omissions, and substantially similar

representations and omissions Defendants include in their advertisements and related

statements, were and continue to be false and misleading. Defendants knew or should

have known that their representations concerning Internet speeds were false and

misleading based on Defendants’ knowledge of their network, infrastructure, and

equipment capabilities, and based on their knowledge of the differences between wired

and wireless Internet connections. Defendants also knew or should have known that their

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representations concerning “no contract” services were and continue to be false and

misleading based on Defendants’ efforts to impose contract terms on all of their

customers. Alternatively, Defendants made such representations, omitted material

information from such representations, and continue to make such representations and

omissions negligently and without reasonable grounds to believe such representations are

true.

38. Defendants made such representations, omitted material information from

such representations, and continue to make such representations and omissions intending

to induce Plaintiff and similarly situated consumers in California to rely on such

representations and material omissions and take action based thereon. Specifically,

Defendants intended to induce and did induce Plaintiff and similarly situated consumers

to purchase Defendants’ Internet services.

39. Plaintiff and similarly situated consumers relied on and took action based

on Defendants’ false and misleading representations and material omissions, including

by purchasing Defendants’ Internet services and paying a premium for Defendants’

Internet services. Plaintiff and other consumers continue to rely on Defendants’ false and

misleading representations and material omissions and continue to pay for services which

Defendants are not providing. Plaintiff and similarly situated consumers would not have

taken such action had they not believed Defendants’ false and misleading representations

and material omissions and would not continue to pay for these services at all or at the

same price if the truth were disclosed.

40. Plaintiff and similarly situated consumers suffered harm as a direct result of

their reliance on Defendants’ false and misleading representations and material

omissions, and Plaintiff and similarly situated consumers will continue to suffer harm in

the future unless Defendants cease making false and misleading representations and

material omissions and correct their advertisements.

41. Plaintiff, individually and on behalf of all similarly situated consumers in

California, seeks: individual, representative, and public injunctive relief requiring

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Defendants to cease and correct all false and misleading representations and material

omissions concerning Internet speeds and reliability and “no contract” offers; actual

damages; punitive damages to punish and deter Defendants’ wrongful conduct; and costs

and attorneys’ fees under Cal. Civ. Code § 1021.5.

Count Two

Violation of False Advertising Law, Cal Bus. & Prof. Code § 17500 et seq.


43. Defendants have intentionally made and disseminated statements and have

included material omissions, and they continue to make such statements and omissions,

to Plaintiff, similarly situated consumers, and the general public concerning Defendants’

Internet services, as well as circumstances and facts connected to such services, which

are untrue and misleading, and which are known (or which by the exercise of reasonable

care should be known) to be untrue or misleading. Defendants have also intentionally

made or disseminated such untrue or misleading statements and have included material

omissions, and they continue to make such statements and omissions, to Plaintiff,

similarly situated consumers, and the general public as part of a plan or scheme with

intent not to sell those services as advertised, and they continue to engage in that plan or

scheme.

44. Defendants’ untrue and misleading statements and material omissions

include advertisements and related statements in print, online, and on television that

represent to consumers they will reliably achieve Defendants’ highest advertised Internet

speeds promised in connection with each service plan (e.g., 30 mbps, 50 mbps, 100 mbps,

150 mbps, 300 mbps, and 1000 mbps). Defendants’ statements and omissions emphasize

the fact that consumers can achieve such speeds using wireless connections and multiple

devices. Defendants’ statements and omissions involve both express representations

(e.g., “300 mbps”) and pictures showing consumers using wireless devices in their

homes. Defendants omit from their statements material information related to the limited

ways in which consumers must use Defendants’ services in order to actually and reliably

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achieve Defendants’ highest advertised speeds.

45. Defendants’ untrue and misleading statements and material omissions also

include advertisements and related statements in print, online, and on television that

represent to consumers they are purchasing Defendants’ Internet services with “no

contract” unless the consumers explicitly agreed otherwise. Defendants omit from their

statements material information related to Defendants’ intent to impose contract terms

on all customers.

46. Defendants made these statements and material omissions, and substantially

similar ones, willfully and intentionally, knowing they were false and misleading, and

Defendants continue to make these and substantially similar false and misleading

statements and material omissions willfully and intentionally. Defendants knew or should

have known that their statements and omissions concerning Internet speeds and “no

contract” offers were false and misleading based on Defendants’ knowledge of their

network, infrastructure, and equipment capabilities, the differences between wired and

wireless Internet connections, and their intent to impose contract terms on all customers.

47. Each of these statements and omissions, and substantially similar statements

and omissions, constitute false and deceptive advertisements under the False Advertising

Law, Cal. Bus. & Prof. Code § 17500 et seq. (“FAL”). Plaintiff and similarly situated

consumers were deceived and continue be deceived by Defendants’ statements and

omissions, and there is a strong probability that similarly situated consumers and

members of the public were also or are likely to be deceived as well. Any reasonable

consumer would be deceived by Defendants’ false and misleading statements and

material omissions.


on Defendants’ false and misleading statements and material omissions, including by

purchasing Defendants’ Internet services and paying a premium for Defendants’ Internet

services. Plaintiff and other consumers continue to rely on Defendants’ false and

misleading statements and material omissions and continue to pay for services which

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Defendants are not providing. Plaintiff and similarly situated consumers would not have

taken such action had they not believed Defendants’ false and misleading statements and

material omissions and would not continue to pay for these services at all or at the same

price if the truth were disclosed. Plaintiff and similarly situated consumers lost money or

property as a direct result of their reliance on Defendants’ false and misleading statements

and omissions and will continue to suffer the same or similar harm in the future.

49. Plaintiff, individually and on behalf of all similarly situated consumers in

California, seeks: individual, representative, and public injunctive relief requiring

Defendants to cease and correct all false and misleading statements and material

omissions concerning Internet speeds and reliability and “no contract” offers; restitution

that will restore the full amount of their money or property; disgorgement of Defendants’

relevant profits and proceeds; and reasonable costs and attorneys’ fees under Cal. Civ.

Code § 1021.5.

Count Three

Violation of Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq.


51. Unfair and Deceptive Advertisements. Defendants have engaged in unfair

and deceptive acts and practices that constitute false and misleading advertising under

the Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (“CLRA”).

Defendants’ unlawful acts and practices include but are not limited to using unfair and

deceptive statements and material omissions in their print, online, and television

advertisements that represent to consumers they will reliably achieve Defendants’

highest advertised Internet speeds promised in connection with each service plan (e.g.,

30 mbps, 50 mbps, 100 mbps, 150 mbps, 300 mbps, and 1000 mbps). Defendants’

statements and omissions emphasize the fact that consumers can achieve such speeds

using wireless connections and multiple devices. Defendants’ statements and omissions

involve both express representations (e.g., “300 mbps”) and pictures showing consumers

using wireless devices in their homes. Defendants omit from their statements material

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information related to the limited ways in which consumers must use Defendants’

services in order to actually and reliably achieve Defendants’ highest advertised speeds.

52. Defendants’ unlawful acts and practices also include using unfair and

deceptive statements and material omissions in their print, online, and television

advertisements that represent to consumers they are purchasing Defendants’ Internet

services with “no contract” unless the consumers explicitly agreed otherwise. Defendants

omit from their statements material information related to Defendants’ intent to impose

contract terms on all customers.

53. Each of Defendants’ representations concerning their highest advertised

Internet speeds and “no contract” offers, and substantially similar representations,

constitute false and misleading advertising and violate the CLRA by:

a. Representing that their Internet services have characteristics, uses, and

benefits which they do not have, in violation of Section 1770(a)(5);

b. Representing that their Internet services are of a particular standard, quality,

or grade, or that goods are of a particular style or model, if they are of

another, in violation of Section 1770(a)(7);

c. Advertising their Internet services with intent not to sell them as advertised,

in violation of Section 1770(a)(9);

d. Representing that a transaction with them confers or involves rights,

remedies, or obligations which it does not have or involve, in violation of

Section 1770(a)(14); and

e. Representing that the subject of a transaction with them has been supplied

in accordance with a previous representation when it has not, in violation of

Section 1770(a)(16).

54. Defendants’ acts and practices were knowing and intentional.

55. Plaintiff and similarly situated consumers relied on these and substantially

similar representations and material omissions to their detriment, including by

purchasing Defendants’ Internet services but not receiving speeds, reliability, and terms

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they were promised, and by paying more for Defendants’ Internet services than they

would have paid had Defendants’ advertisements, representations, and terms been

truthful, accurate, and complete. Defendants knew or should have known that their

statements were false, misleading, deceptive, and unfair based on Defendants’

knowledge of their network, infrastructure, and equipment capabilities, the differences

between wired and wireless Internet connections, and their intent to impose contract

terms on all customers.

56. Unconscionable Terms. Defendants include provisions in the Agreement

that purport to exculpate or improperly shield Defendants from their own liability and

fraudulent conduct (Section 15), to waive consumers’ right to seek remedies that are

recoverable by statute (Section 15), and to disclaim on the back-end representations

Defendants make in their up-front advertisements and statements (Section 1; Section 14).

See Exhibit 12. Each of these provisions is exculpatory, unconscionable, and

unenforceable under Section 1770(a)(19), which makes unlawful Defendants’ act of

“[i]nserting an unconscionable provision in the contract.”

57. Each of these provisions is designed to exempt Defendants from

responsibility for their own fraud and violations of law and to deny Plaintiff and similarly

situated consumers their rights to seek certain statutory and other unwaivable remedies

available under applicable law. Defendants subject Plaintiff and similarly situated

consumers to such unenforceable terms. Plaintiff was not subject to the Agreement prior

to August 2018, but thereafter he has been subject to the Agreement (subject to his

arbitration opt out), including these unconscionable and unenforceable provisions. These

provisions are procedurally unconscionable because they are adhesive, unilaterally

imposed and modified, not reasonably disclosed, and surprising and oppressive. These

provisions are also substantively unconscionable because they are unfairly one-sided and

unreasonably favor Defendants.

58. Plaintiff and similarly situated consumers have suffered harm as a result of

Defendants’ insertion of unconscionable provisions in the Agreement and will continue

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to suffer harm in the future if Defendants are allowed to continue inserting

unconscionable provisions in their consumer agreements and to enforce such provisions

against consumers. Plaintiff and similarly situated consumers would not continue to pay

for, or pay as much for, Defendants’ services if they learned the exculpatory and

unconscionable terms were enforceable against them. Plaintiff has also expended and

will continue to expend costs and fees arguing against and opposing Defendants’ efforts

to enforce unconscionable terms against him and similarly situated consumers.

59. Under Sections 1780 and 1781 of the CLRA, Plaintiff, individually and on

behalf of all similarly situated consumers, seeks individual, representative, and public

injunctive relief requiring Defendants to cease and correct all of their unlawful methods,

acts, and practices; damages; restitution that will restore the full amount of their money

or property; disgorgement of Defendants’ relevant profits and proceeds; and reasonable

costs and attorneys’ fees.

60. Concurrently with the filing of this action, Plaintiff filed an affidavit in

support of this action stating facts showing that the action has been commenced in a

county or judicial district that constitutes a proper place for the trial of this action. See

Exhibit 1. On May 8, 2018, Plaintiff gave Defendants written notice by certified mail,

return receipt requested, to the address provided by Defendants, of the alleged violations

of Section 1770 of the CLRA and demanded that Defendants correct or otherwise rectify

the services alleged to be in violation of Section 1770. See Exhibit 2. Defendants have

not identified or made a reasonable effort to identify all similarly situated consumers;

have not notified such consumers that they will correct or otherwise remedy the unlawful

acts and practices upon request; have not agreed to make such correction or offer such

remedy within a reasonable time; and have not ceased from engaging in the unlawful acts

and practices.

///

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Count Four

Violation of Unfair Competition Law, Cal. Bus. & Prof. Code § 17200 et seq.


62. Defendants have engaged in unlawful, unfair, and fraudulent business acts

and practices, and unfair, deceptive, untrue, and misleading advertising that constitutes

false and misleading advertising under the Unfair Competition Law, Cal. Bus. & Prof.

Code § 17200 et seq. (“UCL”).

63. Defendants are each a “person” under Section 17021.

64. Defendants’ acts, practices, and advertisements that violate the UCL include

but are not limited to using unfair and deceptive statements and material omissions in

their print, online, and television advertisements that represent to consumers they will

reliably achieve Defendants’ highest advertised Internet speeds promised in connection

with each service plan (e.g., 30 mbps, 50 mbps, 100 mbps, 150 mbps, 300 mbps, and

1000 mbps). Defendants’ statements and omissions emphasize the fact that consumers

can achieve such speeds using wireless connections and multiple devices. Defendants’

statements and omissions involve both express representations (e.g., “300 mbps”) and

pictures showing consumers using wireless devices in their homes. Defendants omit from

their statements material information related to the limited ways in which consumers

must use Defendants’ services in order to actually and reliably achieve Defendants’

highest advertised speeds. Defendants’ “No Contract” advertisements are also literally

false and highly misleading and violate the UCL.

65. Defendants’ acts, practices, and advertisements that violate the UCL also

include but are not limited to using unfair and deceptive statements and material

omissions in their print, online, and television advertisements that represent to consumers

they are purchasing Defendants’ Internet services with “no contract” unless the

consumers explicitly agreed otherwise. Defendants omit from their statements material

information related to Defendants’ intent to impose contract terms on all customers.

66. Each of these representations and substantially similar representations are

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unlawful, unfair, fraudulent, deceptive, and untrue and violate the UCL. Each of these

representations and substantially similar representations are further unlawful, fraudulent,

deceptive, and untrue because Defendants intentionally omitted material information

within its knowledge concerning the Internet speeds and reliability and terms underlying

its services.

67. Defendants’ acts of inserting unconscionable terms in the Agreement and

seeking to enforce such terms against Plaintiff and similarly situated consumers also

constitute unfair and unlawful acts and practices in violation of the UCL.

68. Defendants took these acts and practices and made their representations and

omissions knowingly and intentionally, intending that Plaintiff and other consumers

would rely on them and take action. Defendants knew or should have known that their

representations and omissions were false and misleading based on Defendants’

knowledge of their network, infrastructure, and equipment capabilities, the differences

between wired and wireless Internet connections, and their intent to impose contract

terms on all customers. Defendants also knew or should have known that certain

provisions in their Agreement are exculpatory, unconscionable, and unenforceable.


on Defendants’ unlawful, unfair, fraudulent, deceptive, and untrue acts, practices, and

advertisements and related representations and omissions and suffered actual harm and

lost money or property as a result, including by purchasing Defendants’ Internet services

and paying a premium for Defendants’ Internet services. Plaintiff and other consumers

continue to rely on Defendants’ unlawful, unfair, fraudulent, deceptive, and untrue acts,

practices, and advertisements and related representations and omissions by continuing to

pay for services which Defendants are not providing, hoping Defendants’ services will

fulfill their promises. Plaintiff and similarly situated consumers would not have taken

such action had they not believed Defendants’ false and misleading statements and

material omissions and would not continue to pay for these services at all or at the same

price if the truth were disclosed.

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70. Defendants’ actions described above constitute common law fraud and

violate the FAL and CLRA and are therefore unlawful under the UCL.

71. As a result of their unlawful, unfair, and fraudulent acts and practices,

Defendants have reaped and continue to reap unfair benefits and illegal profits at the

expense of Plaintiff and similarly situated consumers.

72. Plaintiff, individually and on behalf of similarly situated consumers in

California, seeks: individual, representative, and public injunctive and declaratory relief

requiring Defendants to cease and correct all of their unlawful acts, practices, and

advertisements; restitution that will restore the full amount of their money or property;

disgorgement of Defendants’ relevant profits and proceeds; and reasonable costs and

attorneys’ fees under Cal. Civ. Code § 1021.5.

Count Five

Declaratory and Injunctive Relief


74. An actual controversy between Plaintiff and Defendants exists concerning

their respective legal rights and obligations related to Defendants’ residential Internet

services for purposes of California Code of Civil Procedure sections 1060 through 1062.

75. Plaintiff requests that the Court adjudicate and declare that Plaintiff and

similarly situated consumers in California have a right to view and rely upon truthful

advertising; that Defendants have an obligation to ensure all of their advertisements and

related statements and representations are truthful, complete, and not misleading; that

Defendants have an obligation not to advertise that their services have “no contracts”

associated with them if Defendants in fact seek to impose contracts on their consumers;

that Defendants cannot enforce any alleged contract terms against consumers where

Defendants represented that their services had “no contract;” that Defendants have an

obligation not to advertise Internet speeds that they know or reasonably should know

consumers are unlikely to consistently or reliably achieve; that Defendants have an

obligation to train their personnel not to misrepresent Defendants’ Internet services and

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not to avoid presenting consumers with truthful, complete, and accurate information; and

that certain terms in Defendants’ Agreement are exculpatory, unconscionable, and

unenforceable.

76. Plaintiff further requests that the Court issue related injunctive relief that

requires Defendants to comply with their legal obligations and utilize only truthful and

complete advertisements, statements, and representations, and ensure consumers are

aware of any and all contracts Defendants seek to impose against consumers and of the

unenforceability of certain provisions in those contracts.

77. Plaintiff, individually and on behalf of all class members similarly situated,

seeks individual, representative, and public declaratory and injunctive relief and any

other necessary orders or judgments that will declare the parties’ respective legal rights

and obligations and that will prevent Defendants from continuing to ignore their legal

obligations and consumers’ legal rights. Plaintiff further seeks reasonable costs and

attorneys’ fees under Cal. Civ. Code § 1021.5.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, individually and on behalf of all similarly situated

consumers in California, prays for the following relief:

A. Certification of this action as a class action;

B. Designation of Plaintiff as a class representative and counsel for Plaintiff as

class counsel;

C. An award of actual, statutory, and punitive damages;

D. Individual, representative, and public equitable, injunctive, and declaratory

relief to remedy Defendants’ violations of California law, including but not limited to an

order enjoining Defendants from continuing their unlawful and unfair business practices

and advertisements;

E. Restitution and disgorgement;

F. Pre-judgment and post-judgment interest as allowed by law;

G. Reasonable costs and attorneys’ fees; and

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H. Such additional and further relief as this Court may deem just and proper.

Dated: February 7, 2020 SODERSTROM LAW PC

By: /s/ Jamin S. Soderstrom


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JURY TRIAL DEMANDED

Plaintiff demands a trial by jury of all issues triable by jury.

Dated: February 7, 2020 SODERSTROM LAW PC

By: /s/ Jamin S. Soderstrom


EXHIBIT 1

Exhibit 1 Page 24

Exhibit 1 Page 25

1 Jamin S. Soderstrom, Bar No. 261054 SODERSTROM LAW PC

2 3 Park Plaza, Suite 100

3 Irvine, California 92614 Tel: (949) 667-4700 4 Fax: (949) 424-8091

[email protected] 5

6 Cou11sel for Plainti,ff and the Proposed Class

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF ORANGE

DAVID EHRMAN, individually and on behalf Case Number: _______ _ of all others similarly situated,

v.

Plaintiff, VENUE AFFIDAVIT OF PLAINTIFF DAVID EHRMAN

COX COMMUNICATIONS, INC. and DOES 1 through 25,

Defendants.

1

VENUE AFFIDAVIT

Exhibit 1 Page 26

I I, DAVID EHRMAN, declare as follows:

2 1. I am over the age of 18. The facts set forth in this Venue Affidavit are based

3 pon my own personal knowledge and, if called as a witness, I could and would

4 ompetently testify to the facts set forth herein.

5 2. I am, and have at all times relevant to this lawsuit been, a resident of Orange

6 ounty, California.

7 3. For years, continuing to the present day, I have purchased Internet services

8 rom Cox Communications, Inc. and/or one of its affiliates. I viewed advertisements

9 elated to these Internet services, made my purchase decisions, and received Internet

10 services at my home in Orange County, California. These advertisements, disclosures, and

11 Internet services are the subject of my claims against Cox Communications, Inc. and its

12 ffiliates in this lawsuit.

13

14 I declare under penalty of perjury under the laws of the United States of America

15 and the State of California that the foregoing is true and correct. This declaration was

16 executed on May _J__, 2018 at Aliso Viejo, California. 17

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By:

2

David Ehrman

Plaintiff

VENUE AFFIDAVIT

EXHIBIT 2

Exhibit 2 Page 27

3 Park Plaza, Suite 100 Irvine, California 92614 soderstromlawfirm.com

949.667.4700 (phone) 949.424.8091 (facsimile) [email protected]

Business Law ǀ Employment Law ǀ Consumer Law ǀ Intellectual Property

May 8, 2018

BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Cox Communications, Inc. Attention: Legal Department 6205-B Peachtree Dunwoody Road Atlanta, Georgia 30328

Re: Notice of Violations of California’s Consumers Legal Remedies Act

To Whom It May Concern:

I am writing on behalf of my client David Ehrman (“Plaintiff”), and on behalf of a class of putative plaintiffs, to advise you that Cox Communications, Inc. and its affiliates (“Defendants”) have violated and continue to violate California’s Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (“CLRA”).

Plaintiff, an Orange County, California resident, has purchased and continues to purchase Internet services from Defendants. Plaintiff has experienced firsthand the unfair and deceptive acts and practices underpinning Defendants’ advertising and sale of Internet services.

I. BACKGROUND

For years and continuing through the present day, Defendants have defrauded and misledPlaintiff and similarly situated consumers by promising to deliver residential Internet service at speeds that Defendants knew they could not reliably deliver and that consumers could rarely, if ever, achieve. Defendants also falsely promised residential Internet services with “no contract.” Defendants’ fraudulent misrepresentations and material omissions have secured for them many millions of dollars of consumers’ money in exchange for Internet services Defendants never delivered.

Defendants advertise and sell residential Internet services based on the Internet speeds consumers can expect to achieve. Defendants classify their Internet speeds based on the number of “megabits per second” (“mbps”) consumers can expect to download or upload using Internet-capable equipment such as desktop computers or Internet-capable devices such as laptop computers, smartphones, and tablets. Defendants offer consumers a variety of Internet speed plans, including: “Essential 30,” which promises speeds of up to 30 mpbs; “Preferred,” which promises

Exhibit 2 Page 28

~, SOD TROM -- LAW --

May 8, 2018 Cox Communications, Inc. Page 2 of 5

speeds of up to 100 mbps; “Premier,” which promises speeds of up to 150 mbps; “Ultimate,” which promises speeds of up to 300 mpbs; and “Gigablast,” which promises speeds of up to 1000 mbps. The more speed Defendants promise to consumers, the more expensive Defendants’ services are to consumers. Defendants also sell certain Internet services to consumers by representing that there is “no contract.”

Defendants recommend their Internet speed plans based on the number of Internet-capable devices a residential consumer may connect to the Internet and the types of Internet activities are performed. The more devices a consumer may connect to the Internet and the more types of activities a residential consumer may perform, the higher the Internet speeds Defendants recommend and try to sell to consumers. For example, if a residential consumer may connect up to seven devices (e.g., four smartphones, two tablets, and a laptop computer) and stream videos or conduct video conference calls for work, Defendants recommend the “Ultimate” Internet plan that promises 300 mpbs will satisfy the consumer’s Internet needs.

Defendants’ advertisements and related statements typically, but not always, identify an “up to” speed. Defendants then strongly suggest that consumers can expect to consistently achieve the advertised “up to” speeds on all of their Internet-capable devices by describing the performance of the Internet services as “fast,” “blazing-fast,” and “reliable” so that consumers will “always have access” to the Internet throughout their homes. Defendants emphasize the wireless capabilities of their Internet services and use advertisements that feature handheld devices such as smartphones, tablets, and laptop computers using WiFi to connect to the Internet. Defendants reinforce consumers’ impressions of Defendants’ Internet services by telling consumers they need higher speeds to connect multiple devices or perform certain online activities, and Defendants then recommend a more expensive package that they say is designed to meet the consumers’ needs.

Defendants know their advertisements and related statements are false and misleading, and they know they are omitting material information from their representations that would impact consumers’ evaluations and purchasing decisions. Defendants know that no consumers will reliably achieve the “up to” speeds they are promised, and that most consumers will never achieve the “up to” speeds. Defendants know most consumers will not even approach speeds near the “up to” speed. This is because Defendants’ “up to” speeds are based on the maximum potential for wired Internet connections used in an environment that is very different from how consumers typically use residential Internet services.

Defendants intentionally do not disclose in their advertisements that only a limited subset of consumers who use wired connections under specific conditions will ever achieve the “up to” speeds. Defendants also intentionally do not disclose that their wireless services are functionally incapable of providing the “up to” speeds to consumers, and that any consumers who are using a wireless device (e.g., smartphone, tablet, laptop computer) will never come close to achieving the “up to” speeds under any conditions and will typically top-out at less than half of the promised Internet speeds.

Defendants’ advertisements never tell consumers who do not own any wired equipment (e.g., a desktop computer directly connected to a modem/router via an Ethernet cable), or consumers who own devices that may be capable of being wired but are used as wireless devices

Exhibit 2 Page 29


(e.g., a laptop computer or smart television), that they will never achieve the “up to” speeds under any conditions. This is true no matter how many wireless devices are connected, how such devices are used, or when the speeds are tested (e.g., outside of peak hours).

Defendants intentionally recommend high speed, high price plans and tout the “up to” speeds. Defendants promise reliable performance that will meet the consumers’ needs. Defendants direct their advertisements primarily to consumers who use handheld devices and wireless Internet connections. Yet, based on Defendants’ insufficient infrastructure, overcrowded bandwidth, and underperforming equipment, Defendants know such consumers will rarely, if ever, achieve the Internet speeds they are paying for. Even with this knowledge, Defendants intentionally do not change their advertisements and related statements and continue to omit material information.

As a consumer who purchases residential Internet services from Defendants, Plaintiff has relied on Defendants’ promises that he is not entering into a contract by purchasing their services and that he will reliably achieve higher Internet speeds at or near the “up to” speed on all of his and his family’s devices. Plaintiff has never achieved at or near the “up to” speed he pays for using wireless devices, however, and he has rarely, if ever, achieved the “up to” speed he pays for using wired equipment. Plaintiff pays a premium over what he would otherwise pay for Defendants’ services based on the reasonable expectation that he would consistently receive Defendants’ advertised Internet speeds and reliability and would not be bound by contract terms.

II. MISREPRESENTATIONS IN VIOLATION OF CLRA SECTION 1770,SUBSECTIONS (5), (7), (9), (14), AND (16)

Defendants have engaged in unfair and deceptive acts and practices that constitute falseand misleading advertising under the Consumers Legal Remedies Act, Cal. Civ. Code § 1750 et seq. (“CLRA”). Defendants’ unlawful acts and practices include but are not limited to:

a. Representations that Defendants would provide Internet services where consumerscan achieve speeds of 30 mbps, 100 mbps, 150 mpbs, 300 mpbs, and 1000 mbps,and similar advertised Internet speeds;

b. Representations that the Internet speeds consumers will receive are “fast,” “blazingfast,” and “reliable” based on Internet performance that would ensure consumers“always have access” throughout their homes;

c. Representations that Defendants’ promised Internet speeds would let consumersconnect multiple devices at the same time and engage in numerous Internetactivities, including but not limited to video streaming, without sacrificingperformance; and

d. Representations that consumers could purchase Defendants’ Internet services with“no contract.”

Each of Defendants’ representations and substantially similar representations constitute false and misleading advertising and violate the CLRA by:

Exhibit 2 Page 30


a. Representing that their Internet services have characteristics, uses, and benefitswhich they do not have, in violation of Section 1770(a)(5);

b. Representing that their Internet services are of a particular standard, quality, orgrade, or that goods are of a particular style or model, if they are of another, inviolation of Section 1770(a)(7);

c. Advertising their Internet services with intent not to sell them as advertised, inviolation of Section 1770(a)(9);

d. Representing that a transaction with them confers or involves rights, remedies, orobligations which it does not have or involve, in violation of Section 1770(a)(14);and

e. Representing that the subject of a transaction with them has been supplied inaccordance with a previous representation when it has not, in violation of Section1770(a)(16.

Defendants’ acts and practices were knowing and intentional.

Plaintiff and similarly situated consumers relied on these and substantially similar representations and material omissions to their detriment, including by purchasing Defendants’ Internet services but not receiving speeds, reliability, and terms they were promised, and by paying more for Defendants’ Internet services than they would have had Defendants’ advertisements, representations, and terms been truthful, accurate, and complete.

Under Sections 1780 and 1781 of the CLRA, Plaintiff, individually and on behalf of all similarly situated consumers, seeks individual, representative, and public injunctive relief requiring Defendants to cease and correct all of their unlawful methods, acts, and practices; restitution that will restore the full amount of their money or property; disgorgement of Defendants’ relevant profits and proceeds; and reasonable costs and attorneys’ fees.

III. DEMAND FOR RELIEF UNDER THE CLRA

On behalf of Plaintiff and all other putative plaintiffs and class members, Soderstrom LawPC intends to file a lawsuit, or amend an existing lawsuit, and seek monetary damages in addition to injunctive relief and all other relief available under the CLRA unless Defendants immediately:

(1) Agree irrevocably to cease all false and misleading advertising related to Internetspeeds and reliability, and to implement an appropriate corrective advertisingcampaign;

(2) Agree irrevocably to modify the representations, statements, and terms onDefendants’ website and related publications to comply with each modificationrequired above;

Exhibit 2 Page 31


(3) Agree to identify all consumers who have purchased residential Internet servicesfrom Defendants at any time since May 1, 2014;

(4) Agree to provide each of the consumers identified in item (3) above a full refund orreimbursement for their payments for residential Internet services; and

(5) Agree to disgorge all revenues and profits received from the unlawfuladvertisements and policies described above.

Absent Defendants’ prompt agreements to each of the above demands, or Defendants’ prompt implementation of an alternative proposal that would fully resolve and remediate for all consumers the harm caused by the unlawful practices described above, Soderstrom Law PC will file a class action complaint, or amend an existing class action complaint, to stop Defendants’ unlawful acts and practices and seek monetary damages in addition to all other available relief for Defendants’ unlawful acts and practices in order to make Plaintiff and other similarly situated consumers in California whole.

Please contact me at 949.667.4700 or [email protected] if you would like to discuss this matter.

Very truly yours,

SODERSTROM LAW PC

Jamin S. Soderstrom

Exhibit 2 Page 32

EXHIBIT 3

Exhibit 3 Page 33

Exhibit 2 Page 34

How fast is Cox High Speed Internet?

~ • 0 Cox Internet Gigablast

Surf & stream over 9 devices Up to 1 Gbps download

Downkuid ume: 1 HD Video

Cox Internet Essential 30

Surf & stream on 3-5 devices

~ • 0

Up to 30 Mbps downloads

Downlo;id time: 1 HO Video

Cox In ternet Ultimate

Surf & stream on 7-9 devices Up to 300 Mbps download

Download ume: 1 HD Video

Cox Internet Preferred 100

~ Surf & st ream on 5-7 devices • Up to 100 Mbps download 0 Download tune: 1 HD Video

Cox Internet Starter 10

Surf & stream on up to 3 devices

Up to 10 Mbps downloads

Download tnie: 1 HO Video I

EXHIBIT 4

Exhibit 3 Page 35

Exhibit 3 Page 36

Support Home Bilhnfu!:i~ount Internet Support TV Support Phone Support Homel1fe Support

What You Can Do w ith Your Cox Internet Plan Make sure you have the speed you need to keep up with your online activities.

YOUR CURRENT PLAN: COX INTERNET PREMIER

Onhne ActMty •■ERIN Essential 30 Starter 1 0 3-Sit-:P'i 1 2devices Light Web Surfing ., ., ., ., ., Sending/Receiving Email

., ., ., ., Music Streaming ., ., ., ., Light Video Streaming and Gaming ., ., ., Managing large Files ., ., Multiple HD Video Streaming and Gaming

., ., 4K Video Streaming and 4K Gaming ., HD Video Calling .,

Grgablast i5 avada ble 111 select Co x mdri;ets. See Glgablast pncmg and chedt ava11.Jbilny. Don't see your pbn? View gr-andfathered Cox Internet plans •

Want faster Internet? Upgrade your plan to Internet Ultimate 300 for $5 more/mo. for 12 months!

El MSSl:liil:iii I

EXHIBIT 5

Exhibit 4 Page 37

Support Home

Billing & Account Support

Internet Support TV Support

Phone Support

Homelife Support

Cox Internet Speed TestCheck the speed of your device's connection to the Internet and explore steps you can take

to improve performance. For the speed test to provide the most accurate results, use a computer with a Wired (Ethernet) connection, turn off WiFi, and close all other programs on

your computer. Get more tips ›

You have COX INTERNET PREMIER with speeds up to: 150 Mbps download | 10 Mpbs upload

Have Cox Gigablast? For the most accurate results, please test your speed here and select your nearest Cox server.

Internet Speed Test | Cox Communications Page 1 of 9

https://www.cox.com/residential/support/internet/speedtest.html 7/27/2018

Exhibit 4 Page 38

Cox - Orange County

Unexpected results do not necessarily mean there's a problem with your Cox service. Many factors inside your home can cause the speeds on your device to be slower than the speeds

Cox delivers to your home. Learn More ›

Want to Improve Your Results?Here are a few steps you can take:



Exhibit 4 Page 39

II

Start Test

ot1 Orange County, CA V

All trademarks of Ookla, LLC, including Speedtest®, are used under license.

Improve Speeds

Explore steps you can take to improve your Internet speed.

Get Tips

Restart the Test

After following the tips below, restart

the test.

Restart Test

TroubleshootSee if there are any outages and reset

your modem.

Check Outages

Get Faster Speeds

Upgrade your plan for $5 more/mo. for

12 months!

Upgrade Internet

7 Tips to Improve Your Internet SpeedMany factors inside of your home can affect your speed. Follow these tips to enhance your

speed:

1. Reboot EquipmentReboot your modem (watch how-to

video) and devices by powering them off and back on for optimal

performance.

3. Turn Off WiFiTurn off WiFi on your computer and unplug your router (if you have one) from your modem. Disconnect from

any VPN's.



Exhibit 4 Page 40

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Cl

Online Activity Gigablast9+ devicesUltimate

3007-9 devices

Preferred 100

5-7 devices

Essential 30

3-5 devices

Starter 101-2

devices

Light Web Surfing

Sending/Receiving Email

Music Streaming

Light Video Streaming and Gaming

Managing Large Files

Multiple HD Video Streaming and Gaming

Gigablast is available in select Cox markets. See Gigablast pricing and check availability. Don't see your plan? View

grandfathered Cox Internet plans ›



Exhibit 4 Page 42

Restart the Speed TestOnce you've followed the above tips, restart the speed test to see if you improve your speed

test results.

Restart the Speed Test

What You Can Do with Your Cox Internet PlanMake sure you have the speed you need to keep up with your online activities.

YOUR CURRENT PLAN: COX INTERNET PREMIER

~ ~ ~ ~

~ ~ ~ ~

~ ~ ~ ~

~ ~ ~

~ ~

~ ~ a Streaming and 4K ~ o Calling ~

Additional Information

Do I have to sign in to run the test or connect to a Cox network?

No – you are not required to sign in prior to starting the Speed Test; however, by signing in first, you can see your current Cox Internet plan speeds to easily compare them to your speed test results. The test is intended to be run on your in-home Cox network but can be run on another network, such as using your mobile carrier data or public WiFi.

Can I test my Cox Internet speed using my smartphone, tablet or other mobile device?

(Desktop Computer, Laptop, Tablet and Phone) and most major operating systems.

Wall-to-Wall Fast with Panoramic WEliminate dead zones with fast WiFi coverage in every part of your home and get total WiFi con

all Cox Internet plans when you add the Panoramic WiFi mod

Explore Panoramic WiFi



Exhibit 4 Page 43

Want faster Internet?

Upgrade your plan to Internet Ultimate 300 for $5 more/mo. for 12 months!

Upgrade Your Internet

L l

lutely! We have designed the speed test so that it scales to multiple device types

Please note that laptop and desktop computers connected directly to your Cox modem typically provide better results than mobile devices due to the factors listed above.

Does Cox guarantee my Internet speed test results will be the same as my subscription tier?

No. Cox does not guarantee that the results of the speed test will match your plan subscription 100% of the time. This is due to a number of factors beyond Cox’s control which may impact your speed, including (but not limited to) the processing power of your personal computing equipment, applications running on your computer, the nature and quality of your home network connection, third party networks you may be connected to, and the performance of the websites you visit and congestion on the Internet.

How does the Cox Speed Test tool work?

The Cox Internet Speed Test is backed by Ookla and measures the ping (latency), download speed and upload speed between your device and a test server. Note that it does not measure the speed Cox is delivering to your modem since many factors affect the speed in your home as it's processed by your modem, device, and everything in between.

During the test, multiple connections to a nearby test server are made to measure latency and download/upload speeds. All samples are sorted by speed, and the two fastest results and the bottom quarter of the remaining samples are removed. The remaining samples are then averaged.

Why are my Cox Speed Test results different than results from other online Speed Tests?

Test methodologies differ between speed test websites, which can cause your results to be different even if the conditions under which you're performing the test are the same. Here are some factors that can differ:

1. The location of the server being tested2. The number of threads being used3. How results are measured from analyzing test samples

So what do all of the terms, like "latency," mean? (Glossary)

– using an ethernet cable connected from your device directly to

WiFi Connection – a wireless network that uses a radio frequency signal to connect your devices to the Internet and to each other



Exhibit 4 Page 44

• I I I CHAT odem to connect to the Internet and other devices

Cellular Connection – a network distributed by mobile carriers (AT&T, Verizon, Sprint, T-Mobile, etc.) over land through cells that together provide radio coverage over largergeographical areas

Download – how fast your connection delivers content from the Internet to your device. It determines how long it takes to download files (like photos, movies, songs) or display webpages with lots of images.

Upload – how fast content is delivered from your device to the Internet. It determines how long it takes to post pictures to social media or upload an email attachement.

Mbps – Megabits per second (Mbps) is is the industry-standard measure of transfer rate or Internet speed.

Latency – The reaction time (measured in milliseconds) of your connection–how quickly your device gets a response after you’ve sent out a request

Test Server – a computer system used as the central repository of data and various programs that are shared by users in a network

IP Address – a unique string of numbers separated by periods that identifies each computer using the Internet Protocol to communicate over a network

Modem – a small device that connects to your Internet Service Provider (ISP) to provide Internet in your home

Router – a small device that connects to your modem via an Ethernet cable and passes the Internet connection on to other devices either via additional Ethernet cables or via a wireless network

Need More Help? Let's chat!Chat live with a Cox agent to get the fastest answers to all your top questions.



Exhibit 4 Page 45

II Chat Online Now

Post a Question › Tweet

@CoxHelp ›

Browse Forums

›

Contact Cox ›



Exhibit 4 Page 46

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RH1denual Cox Bus nl'ss Esp.a1'ol l!' Shopp ng Ca~ Cor act Us 9 lrvinl' U ,

COX Shop Support Learn - .:_ Internet Equipment Speed Advisor Complete Care W iFi Hotspots

I

- YOUR RESULTS -

Speed Advis'9'rSM

YOU NEED AT LEAST

59 0 0

I

We recomm end you get 100 Mbps w ith

Cox High Speed Internet"' Preferred 100

See Why ..

If you like onllne music and photos. then Internet Preferred 100 Is your Jami Movies? Sure. you can stream the occasional mck. Consider your modest web needs satisfied with 100 Mbps.

But when you' re ready, you can get a doub le burst of sp eed to launch you into the next st ream -o -sphere- all for only a few extra bucks!

GET THE SPEED YOU NEED:

Internet Ultimate+ Internet Prefer red Contour Flex 100

• Internet Ult imate p lus; • Up to 100 Mbps • 70 Unique Channels

download speeds includ ing local channels • 1 O Mbps upload speeds • Record l0OOhoursof • Includ es 500,000 FREE content

wifl hot spots • Includes 500,000 FREE

$49·99 wifi hot spots

• FREE OnDemand Access

$89·99 Per month fOf 12 months

OffUOflAIUf. TlllMS Per month for 12 months

OffUDnAIUf.mtMS

PM IHiM

Your Speed Explained Speed Advisor results based on: Thdnks for taking Speed Advis

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