IN THE CIRCUIT COURT ELEVENTH JUDICIAL CIRCUIT

IN AND FOR MIAMI-DADE COUNTY

Case No.: _________________________

CLASS REPRESENTATION HERSSEIN LAW GROUP, A Florida corporation, On its own behalf and on behalf of all others similarly situated,

Plaintiff, v. REED ELSEVIER INC., A Massachusetts corporation, Defendant. __________________________________/

CLASS ACTION COMPLAINT

Plaintiff Herssein Law Group (“Plaintiff”) brings this Class Action Complaint against

Defendant Reed Elsevier Inc. (“Defendant”), seeking to stop Defendant’s unlawful practice of

charging an Annual Maintenance Plan (“AMP”) fee to purchasers of LexisNexis’ PCLaw, Time

Matters and Billing Matters software prior to May 1, 2010, when AMP became effective.

Purchasers of the software prior to May 2010 were already entitled to software updates, bug

fixes, and software that worked, should not be required to pay an annual AMP fee for a mere

continuation of services. Updates, bug fixes, and operational software were already bargained

for when the software was purchased prior to May 2010. These purchasers should also be

reimbursed the mandatory annual AMP fees previously paid to Defendant, and Defendant should

be enjoined from charging AMP fees to those who purchased software prior to May 1, 2010.

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JURISDICTION, VENUE & PARTIES

1. Plaintiff is a Florida Corporation and has been Defendant’s customer since 2007, when it

purchased Defendant’s “Time Matters” software.

2. Defendant Reed Elsevier Inc. is a Massachusetts corporation with its principal place of

business in Massachusetts. Under the name “LexisNexis,” Defendant markets office

management software to consumers, including PCLaw, Time Matters and Billing Matters

3. Venue is proper because Defendant regularly and systematically transacts business in

Miami-Dade County. Defendant provided services, billed Plaintiff, and charged an AMP fee in

Miami-Dade County.

4. Jurisdiction is proper pursuant to Fla. Stat. § 48.193 because Defendant is a foreign

corporation authorized to do business in Miami-Dade County, is doing business in Miami-Dade

County, and has registered with the Florida Secretary of State. By conducting business in

Miami-Dade County, Defendant has sufficient minimum contacts with Miami-Dade County, or

has otherwise availed itself of consumers residing in Miami-Dade County through systematic

sale of, and provision of, its services. Moreover, Defendant has been unjustly enriched from its

customers in Miami-Dade County based on the conduct outlined below.

BACKGROUND AND BUSINESS CONDUCT FACTS

5. Defendant Reed Elsevier Inc., through its LexisNexis name brand, has sold and serviced

PCLaw, Time Matters and Billing Matters office management software to consumers both before

and after May 1, 2010.

6. Effective May 2010, Defendant’s Annual Maintenance Plan (“AMP”) policy required

“all PCLaw, Time Matters and Billing Matters customers to have an active, in-force Annual

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Maintenance Plan (AMP) in order to receive updated software and technical support.” See

https://www.lexisnexis.com/terms/practice-management-software-policy.aspx.

7. The AMP fee must be paid by consumers who purchase PCLaw, Time Matters or Billing

Matters office management software both before and after May 1, 2010.

8. Essentially, payment of the AMP fee ensures that PCLaw, Time Matters or Billing

Matters software continue to work properly for Defendant’s consumers, or as stated on

Defendant’s website, ensures “continuous operation,” of this software. See id.

9. Purchasers prior to May 2010, prior to the time the AMP fee came into effect, bought

installed and began using PCLaw, Time Matters or Billing Matters software relying on

Defendant’s representations, and implied warranties, that the software worked properly, and

would continue to work properly - this was part of the bargain.

10. Purchasers of this software prior to May 2010 enjoyed technical support and

maintenance, bug fixes, updates, etc., from Defendant, simply by virtue of having purchased the

software, and Defendant’s duty to ensure that its products work properly.

11. Nevertheless, a February 1, 2010 AMP policy revision, under a section titled, “What

Happens if I don’t subscribe to an AMP” states that “Without an AMP subscription you could …

risk an interruption to your business.”

12. Defendant charges the AMP fee to purchasers of its software prior to May 1, 2010 for a

mere continuation that the software works properly. It is a needless add-on charge billed to long-

time customers who purchased the software already reasonably relying on “continuous

operation” and standard bug fixes to ensure functionality of the software.

13. Moreover, the consumer of the software, even after paying the AMP fee, must hire and

pay an additional charge to a LexisNexis certified “independent consultant” to implement

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software upgrades and changes. Defendant does not supply adequate support and time (e.g.

remote log-in) to resolve these issues, even after payment of the AMP fee by the consumer.

14. The annual AMP fee is mandatory, even for purchasers of the software prior to May

2010: “A customer who does not have an AMP or whose AMP has lapsed will be required to pay

an AMP reinstatement fee, in addition to the standard AMP plan price, if the customer does not

order an AMP on or before April 30, 2010. Effective March 1, 2010, first time software orders

can only be made in conjunction with an AMP.” See id.

15. The AMP fee that must be paid by those who purchased the software prior to May 2010

is considerably expensive: for time matters purchasers, $360 per year for the first user of the

firm/business, plus $155 for each additional user.

16. This “additional user” charge is a needless multiplication of the already pricy and annual

AMP fee, and especially burdensome for larger firms and businesses using the software. When

there is a bug or other problem with the software, it has an effect on all users of the product

within the firm or business using the LexisNexis software equally.

FACTS RELATING TO NAMED PLAINTIFF

17. In 2007 Plaintiff, a law firm purchased Defendant’s Time Matters practice management

software.

18. As a purchaser of this software prior to May 1, 2010, Plaintiff relied on Defendant’s

representations and implied warranties that Time Matters worked properly and would continue to

work properly, and that Defendant would provide bug fixes, updates, etc., as consideration for

the sale.

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19. In 2010, 2011 and 2012, Plaintiff paid Defendant the AMP fee, which included a hefty

“additional user” charges referenced above in ¶ 14, because the law firm employed roughly 25

additional users each year.

20. In summer 2013, Plaintiff was billed $4,080, based on the first user plus 24 additional

users employed by the law firm, for the AMP.

21. An email communication from Defendant’s agent, reminding that the AMP needed to be

renewed, stated that “As a reminder, in order to continue to receive software upgrades,

maintenance and support you must have an active Annual Maintenance Plan in place.”

22. These are services that Plaintiff enjoyed prior to Defendant’s implementation of the AMP

fee for its existing customers in May 2010.

CLASS REPRESENTATIVE ALLEGATIONS

23. Plaintiff brings this action against Defendant on behalf of itself and all other persons

similarly situated. Plaintiff seeks to represent the following class:

All individuals who purchased Defendant’s PCLaw, Time Matters or Billing Matters software prior to May 1, 2010, and paid a mandatory Annual Maintenance Plan fee to Defendant for continuation of these services subsequent to May 1, 2010, when the Annual Maintenance Plan policy became effective.

24. Excluded from the class are Defendant, its agents and legal representatives, its assigns

and successors, and any entity in which Defendant has a controlling interest.

25. Plaintiff reserves the right to modify and/or amend the definition of the proposed class

before the Court determines if class certification is appropriate.

Numerosity

26. The Class is so numerous that joinder of all members is impracticable.

27. Defendant’s LexisNexis name brand is a global leader in providing practice management

services and software to law practices. Defendant’s website tells consumers to “Trust the award-

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winning billing and accounting, financial management and practice management software

solutions used by more than 40,000 organizations worldwide.”

Commonality

28. There are questions of law and fact that are common to Plaintiff and the Class Members’

claims. These common questions predominate over any questions that go particularly to any

individual member of the class. Among such questions are the following:

a) Whether consumers who purchased PCLaw, Time Matters or Billing Matters software

prior to May 1, 2010 should have to pay a mandatory AMP fee for continuation of these

services;

b) Whether consumers who purchased PCLaw, Time Matters or Billing Matters software

prior to May 1, 2010 should be reimbursed for their prior AMP fees paid to Defendant;

c) Whether Defendant’s conduct, in charging and receiving an mandatory AMP fee from its

customers in these circumstances constitutes unjust enrichment;

d) Whether this conduct violates Florida’s Deceptive and Unfair Trade Practices Act.

Typicality

29. The Class Members’ claims are typical of each other’s claims because of the similarity,

uniformity and common purpose of Defendant’s conduct.

30. Each Class Member has sustained damages in the same way, by being charged and

paying an AMP fee for continuation of services.

Adequacy

31. Plaintiff is an adequate representative of the Class and will fairly represent the interest of

the class. Plaintiff is a law firm with knowledge of consumer protection and contract matters.

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There is no conflict between Plaintiff and the unnamed Class Members, and Plaintiff has the

time, knowledge and resources to adequately represent the class.

32. Plaintiff is represented by competent counsel with vast experience in complex civil

litigation that is committed to the prosecution of this case. Plaintiff’s counsel has ample

financial and legal resources to meet the demands of class action litigation.

Fla. R. Civ. P. 1.220(b)(3) Allegations

33. The questions of law or fact common to Plaintiff’s and each Class Member’s claims

predominate over any questions of law or fact affecting only individual class members.

34. All claims brought by Plaintiff and the unnamed Class Members are based on

Defendant’s conduct of charging an AMP fee to those who purchased its software prior to May

1, 2010, just so that the software continues to work properly, and to prevent “a risk [of]

interruption to . . . business.”

35. Common issues predominate because liability can be determined on a class-wide basis

when the Court determines the propriety of charging an AMP fee in these circumstances.

Therefore, common questions predominate over individual questions.

36. Class representation is superior to other available methods for the fair and efficient

adjudication of this controversy for the following reasons:

a) Multiple separate lawsuits would be wasteful in light of the sheer volume of Defendant’s

customers.

b) Joinder of all class members would create hardship, inconvenience and undue expense, as

Defendant markets and provides legal support services and PCLaw, Time Matters or

Billing Matters software throughout the United States.

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c) There are no known individual Class Members who are interested in controlling the

prosecution of separate actions.

d) This action is manageable as a class action.

Fla. R. Civ. P. 1.220 (b) (1 & 2)

37. The prosecution of separate actions by the individual Class Members would create a risk

of inconsistent or varying adjudications with respect to individual Class Members that would

establish incompatible standards of conduct for Defendant.

38. Defendant has acted in a manner generally applicable to the Class, making injunctive or

declaratory relief with respect to the Class as a whole appropriate.

COUNT I: UNJUST ENRICHMENT

39. Plaintiff incorporates the previous allegations by reference.

40. Plaintiff and the Class Members conferred a benefit on Defendant by paying a mandatory

AMP fee for continued operation of LexisNexis’ PCLaw, Time Matters and Billing Matters

software.

41. Defendant has knowledge of and accepted and retained the conferred benefit by billing

this AMP fee to existing customers that purchased the software prior to May 1, 2010 and

accepting payments from Plaintiff and the Class Members, in the form of annual AMP fees, and

reinstatement fees.

42. Under the circumstances, it would be inequitable for Defendant to retain the benefit.

43. Specifically, Defendant should not retain AMP fee payments and reinstatement fee

payments from Plaintiff and the Class Members for mere continued operation of the software.

COUNT II: DECEPTIVE AND UNFAIR TRADE PRACTICES UNDER FLA STAT. § 501.201, et seq.

44. Plaintiff incorporates the previous allegations by reference.

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45. Fla. Stat. § 501.204 provides a private cause of action for those harmed by “[u]nfair

methods of competition, unconscionable acts or practices, and unfair or deceptive acts in the

conduct of any trade or commerce . . .”.

46. Defendant’s PCLaw, Time Matters and Billing Matters consumers seek protection under

the FDUTPA Statute from Defendant’s unfair practices involving charging an AMP fee to

purchasers of the software prior to May 1, 2010, so that the software would continue working

and to prevent “a risk [of] interruption to . . . business.”

47. When the consumers purchased the software, Plaintiff and other consumers in the class

relied on Defendant’s representations and implied warranties that the software worked properly

and would continue to work properly, and that Defendant would provide bug fixes, updates, etc.,

as consideration for the sale of the software.

48. Defendant deceptively presents its AMP policy as something new and useful, when in

reality, simply ensures “continuous operation” of the software.

49. But payment of the AMP fee, in and of itself, does not even ensure “continuous

operation” and proper maintenance of the software. The consumer of the software, even after

paying the AMP fee, must hire and pay an additional charge to a LexisNexis certified

“independent consultant” to implement software upgrades and changes. Defendant does not

supply adequate support and time (e.g. remote log-in) to resolve these issues, even after payment

of the AMP fee by the consumer.

50. Defendant’s conduct is unfair, unconscionable and deceptive when it charges its

customers that existed prior to May 1, 2010, such as Plaintiff and the Class Members, AMP fees

and Reinstatement fees simply so that the software will continue to work properly.

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51. Defendant’s conduct is unfair, unconscionable and deceptive in that the “additional user”

charge that Defendant charges per user at a firm or business in addition to the initial charge is a

needless multiplication of the already pricy and annual AMP fee, and especially burdensome for

larger firms and businesses using the software. When there is a bug or other problem with the

software, it has an effect on all users of the product within the firm or business using the

LexisNexis software equally. There are no “single user” bugs, so the “additional user” charge

results in a windfall to Defendant, with no added burden to it.

52. A reasonable consumer would not think that he or she would or should be charged an

AMP fee in such circumstances, given that when the software was purchased prior to May 1,

2010, it was supposed to [continue to] work properly and bug fixes, and other bug fixes to issues

as well as upgrades were included in the bargain for the purchase of the software.

53. A reasonable consumer would not have purchased the software with the knowledge that

in the future, if the consumer wanted to keep the software – and therefore its business –

operational, it would have to pay a similar fee, per user, year after year.

54. Thus, Defendant has violated Florida’s Unfair and Deceptive Trade Practices Statute.

55. Plaintiff and the Class Members are thus entitled to all relief stated in Fla. Stat. §

501.2105 & Fla. Stat. § 501.211, including a declaratory judgment that it is unfair and deceptive,

within the meaning of the Statute, to charge an annual AMP fee to those who purchased the

software prior to May 1, 2010, and an injunction preventing further similar practices by

Defendant.

DEMAND FOR JURY TRIAL

56. Plaintiff requests jury trial of all claims that can be so tried.

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WHEREFORE, Plaintiff Herssein Law Group, on its own behalf and on behalf of the

Class, prays for the following relief:

a) Certification of this case as a Class Action on behalf of the Class defined above and

to appoint Herssein Law Group as Class Representative and lead counsel;

b) Declare that Defendant was unjustly enriched by the above-described conduct;

c) Declare that Defendant violated Florida’s Unfair and Deceptive Trade Practices

Statute in light of the above-described conduct;

d) Enter Judgment against Defendant for all economic, monetary, actual, consequential

and compensatory damages on behalf of the class, based on Defendant’s conduct;

e) Award Plaintiff and the Class reasonable costs and attorneys’ fees;

f) Award Plaintiff and the Class pre- and post-judgment interest; and

g) Enter an injunction requiring a corrective measure to be taken to prevent Defendant

from charging AMP fees to those who purchased its software prior to May 1, 2010;

and

h) All other relief, in law and equity, deemed appropriate by this Court.

Dated: July 16, 2013

Respectfully submitted, HERSSEIN LAW GROUP 12000 Biscayne Boulevard Suite 402 North Miami, Florida 33181

Telephone No: (305) 531-1431 Facsimile No: (305) 531-1433 Miamieservice@hersseinlaw.com

_______________________________ REUVEN HERSSEIN, ESQUIRE FBN 0461504

Attorneys for Plaintiff

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