Donald P. Driscoll
State Bar No.  95472
William M. Henley
State Bar No.  141575
436 Fourteenth Street, Suite 1411
Oakland, California  94612
Telephone:  (510) 834-4500

Attorney for Plaintiffs


	ALAMEDA COUNTY SUPERIOR COURT



DOUGLAS K. MARTIN, M.D., JOHN 
PATCHETT, JOHN T HANKES, JOHN 
CRAIN, ANDREW BUCK, JOHN STOTT, 
JOSEPH EVANS, JIM CHEVIRON, 
PATRICIA L. TRENT, 
DAN LITTLE,  JUREK KOLASA, RODNEY 
RAY,  REYES BALDERAS, PAUL 
MAGID, MARK F. HEIL, and, WILLIAM 
E. MYERS, on behalf of 
the general public,

	Plaintiffs,

vs.

SYNCRONYS SOFTCORP, 
COMPUSA, INC., QVC 
NETWORK, INC.,WAL-MART 
STORES INC., TIGER DIRECT, INGRAM 
MICRO, INC., RAINER 
POERTNER, WENDALL BROWN 
and Does 1 through 250,

	Defendants.

))
)
)
)
)))
)
)
)
)
)))))))))))))

NO.

CLASS ACTION COMPLAINT 
FOR FRAUD AND 
BREACH OF WARRANTY



Plaintiff will prove:

1.  Captions contained in this complaint are for the purpose of
clarity only, and do not alter the meaning of the allegations.  This
complaint alleges fraud and other causes of action based on the sale
of SoftRAM , a product which defendants claim enhances the
performance of IBM PC compatible computers running Microsoft Windows,
by allowing Microsoft Windows to run more programs faster.  In fact
SoftRAM does not have that effect.

2.  Defendants sold SoftRAM throughout the nation, including in
Alameda County.  Plaintiff Patricia L. Trent purchased SoftRAM in
Alameda County, where it was sold and advertised by the defendants.

	The Plaintiffs

3.  Each plaintiff bought SoftRAM, a product created by defendant
Syncronys for the purpose of enhancing the performance of Microsoft
Windows.  In each instance, each plaintiff failed to obtain benefit
from SoftRAM.

4.  Each plaintiff bought SoftRAM in reliance upon Syncronys'
representations that SoftRAM enhanced the performance of Microsoft
Windows.  

	Class Action Allegations

5.  This action is brought on behalf of the class of all persons who
purchased Syncronys anywhere in the world.  All such purchases were
made after January 1, 1995.  Over one hundred thousand persons made
such purchases.  The class is so numerous that joinder of all members
individually would be impractical.

6.  Each plaintiff and each member of the class purchased SoftRAM in
reliance on identical written claims made on the SoftRAM box and
elsewhere.  The core representations on which each plaintiff and each
class member relied were the claim that SoftRAM is "RAM Doubling &
Resource Expansion Software" for Microsoft Windows; that SoftRAM 95
will "double your memory"; and that SoftRAM is "safe, tested, &
guaranteed."  Each of these representations was made on each SoftRAM
box.

7.  Common questions of law and fact predominate.

8.  The named plaintiffs' claims are typical of the class generally.    

9.  The named plaintiffs can and will fairly and adequately protect
the interests of all the members of the class. 

	Defendants 

a.  Syncronys Defendants.

10.  Each of the following defendants shall collectively be referred
to as "Syncronys."

11.  Defendant Syncronys Softcorp is a corporation with its primary
place of business in Culver City, California.

12.  At all relevant times defendant Rainer Poertner was CEO of
Syncronys Softcorp.

13.  At all relevant times defendant Wendall Brown was an officer of
Syncronys Softcorp.

14.  Does 1 through 20 owned or operated Syncronys.

b.  Distributor Defendants.

15.  Each of the following defendants shall be referred to as a
"distributor defendant."

16.  Defendant Ingram Micro, Inc., and Does 21 through 50 distributed
SoftRAM for Syncronys and committed all acts alleged in this
complaint.

c.  Retailer Defendants.

17.  Each of the following defendants shall be referred to as a
"retailer defendant."

18.  Defendant CompUSA, Inc. is a corporation which does business
throughout California and the United States as a chain retail seller
of computer products.

19.  Defendant QVC Network, Inc., is a Delaware Corporation, a cable
television network, and a national mail order distributor.

20.  Defendant Wal-Mart Stores Inc. owns and operates Sam's Clubs, a
chain of retail stores which sell SoftRAM. 

21.  Fry's Electronics, Inc., operates a chain or retail computer
stores.  Fry's operates stores in California and sells SoftRAM.

22.  Does 51 through 199 sold SoftRAM.

d.  Co-Conspirator Defendants.

23.  Each of the following defendants conspired with Syncronys to
commit all acts alleged in this complaint, but was neither a
distributor nor a retailer: Does 200-250.

	Doe Allegations

24.  The true names of the Doe defendants are not known.  This
complaint will be amended to assert those names when they are
learned.

	Conspiracy

25.  In early 1995, defendant Syncronys and others devised a plan to
engage in the fraudulent sale of software.  That software was
promoted though favorable reviews provided by co-conspirators who
worked for computer magazines and were not employed by Syncronys.
The on-going purpose of the conspiracy was to move Syncronys' SoftRAM
first to retailers and then from there to consumers.  

26.  As will be set forth in further detail, the retailers were
initially unaware of the fraudulent nature of SoftRAM.  By November
1, 1995, each of the retailer defendants learned that SoftRAM did not
perform as represented, but entered the conspiracy and agreed to
continue to sell the SoftRAM after they knew it did not work.

27.  The conspiracy depended for its success on the continued sale of
SoftRAM after November 1, 1995.  This is because the cost of
initially starting a successful software product is high, but the
marginal cost of selling additional units of software is low.  Thus,
all the sales were interconnected by the fact the conspirators
intended to make money selling in volume, and would fail to make
money unless volume was achieved.

28.  The retailer defendants, because they joined the conspiracy, are
liable for acts in furtherance of the conspiracy, including those
which took place before they joined the conspiracy.  Each retailer
defendant is liable as a principle in the enterprise which defrauded
each plaintiff and every class member.

29.  It was Syncronys' intention from the start, if caught, to claim
that SoftRAM did not work because of a "bug" (i.e., a programming
glitch) and to say that it would provide an upgraded version which
would work.  In fact, as Syncronys knew at all times, SoftRAM did not
have a "bug" in it.  Rather, as Syncronys knew at all times, the
version of SoftRAM which was sold never functioned, was never
intended to function, and was sold because, as Syncronys knew, it was
unable to complete a compression program which would function.

	FIRST CAUSE OF ACTION
	FRAUD
	AGAINST EACH DEFENDANT


30.  Each of the preceding paragraphs is incorporated by reference.

31.  Defendant Syncronys is a California Corporation engaged in the
manufacture and sale of a computer program called SoftRAM.  SoftRAM
is a program for use in conjunction with Microsoft Windows running on
a IBM PC compatible computer.  Syncronys represents that SoftRAM
facilitates the running of other programs on the computer.  SoftRAM
is not sold as having any other purpose.

32.  Each plaintiff purchased Syncronys SoftRAM, as did each member
of the class.

33.  The Distributor defendants distribute SoftRAM on behalf of
Syncronys.

34.  The Retailer defendants sell SoftRAM.

35.  Each defendant sells SoftRAM as a product for Windows 3.0 and
Windows 95, and represents that SoftRAM is "RAM Doubling and Resource
Expansion Software." 

36.  Syncronys explicitly represents that "SoftRAM 95's Patent
Pending RAM compression technology takes your Windows memory and at
least doubles it."  (Emphasis in original.)  In fact, this claim and
others are fraudulent. SoftRAM fails to work.  

37.  Terminology.  The following terms are defined for this
complaint:

	RAM Memory

38.  "RAM memory" (Random Access Memory) is the memory contained in a
computer's memory chips.  In a typical PC today, the amount of RAM
memory in a PC is much less than the amount of hard disk storage on
the same computer.  However, accessing hard disk storage is much
slower than accessing RAM memory. 

	Virtual Memory

39.  Virtual Memory is a concept which allows the more plentiful
space on a hard disk to function as a stand-in for RAM memory.  The
concept is implemented on a PC by dividing RAM memory into sections
called "pages."  When a page of RAM memory is not in use by the
computer, Windows can temporarily store the page on a hard disk.
That frees up RAM memory for other uses.  When a program tries to use
RAM memory that has been moved to the hard disk, Windows 95 stops the
program, retrieves the RAM page from the hard disk, and puts the page
back in the physical RAM memory on the computer's chips.  (This
process is called "swapping.")

	SoftRAM Compressed Memory

40.  "Compressed Memory" provides a third alternative.  "Compressed
Memory"of the sort claimed for Syncronys takes pages of RAM which
could have been swapped to the hard disk and compresses them.  The
compressed pages purportedly take up less room, although they must be
uncompressed before they can be used. 

41.  The computer process of compression is the equivalent of
shortening a book by using abbreviations for things which repeat.
The extent to which compression can be achieved generally depends
upon finding parts of memory which repeat and can be abbreviated.

	Inherently False Representations

42.  Syncronys makes various statements on the box in which it sells
SoftRAM which are inherently false.  As hereafter used, the term
"inherently false" is used to describe things which information
theory can prove to be false for any program, not just SoftRAM 95.
Information theory is a branch of mathematics.

43.  The SoftRAM box states that "SoftRAM 95's Patent Pending RAM
compression technology takes your Windows memory and at least doubles
it."  This claim is a claim that SoftRAM 95 always achieves
compression of 2:1.  Such a claim is inherently false.  For any
compression algorithm, it can be shown that there is data which that
compression algorithm will be unable to compress at all, much less
two to one.

44.  The box in which SoftRAM is sold also contains the following
language: 

Imagine: 4MB becomes 8MB 8MB becomes 16MB... You become doubly
productive.  Install SoftRAM and instantly speed up Windows, run
larger applications and open more applications simultaneously.  Say
good-bye to `Out-of-Memory' messages.  (Ellipsis in original.)

45.  The language quoted in the preceding paragraph includes the
inherently false claim, set forth above, that compression will
necessarily be achieved.  The quoted language also contains the claim
that SoftRAM will speed up programs running under Microsoft Windows.
That claim is also inherently false in that attempts to compress
memory use computer processing time and have the potential to speed
up the computer only if compression is achieved.  Since a claim that
compression will be achieved is inherently false, so is a claim that
an increase in speed will be achieved.

	Additional False Representations

46.  SoftRAM is not a good faith attempt to implement Compression
Memory so as to speed up a computer's operation.  Instead, it was
intended by Syncronys to be fraudulent.  The program makes no attempt
to compress anything, and at all relevant times Syncronys has known
the program does not compress anything.

47.  SoftRAM does contain an attempt to create the illusion that it
is compressing memory.  It does so by asking Windows to increase the
amount of disk space allocated to virtual memory and then reporting
back to the user that it has created compressed memory.

48.  As a general proposition, SoftRAM has no impact on the amount of
virtual memory.  This is for several different reasons.  First, when
SoftRAM is run under Windows 95, SoftRAM generally simply disables
itself even when it reports to the user that it is enabled.  Second,
under Windows 95 running with default settings, all available disk
space is used as needed for virtual memory.  Third, under Windows 3.0
and 3.1, SoftRAM has an impact on virtual memory only if the user has
selected the temporary swap file option.  Under those circumstances
SoftRAM simply resets Windows to increase the amount of virtual
memory available (if there is sufficient space on the hard disk.)
The same result could be achieved by the user (if desired) simply by
changing Windows settings accessible to the user.  

49.  SoftRAM uses computer resources to conceal the falsity of the
claim that it is compressing memory, which it never does.
Consequently, as a practical matter SoftRAM when not disabled will
generally slow down the computer.

50.  Syncronys also represents that SoftRAM will "expand your System
Resources...and is compatible with Windows 95."  "System Resources"
is a technical term relating to certain aspects of Windows 95.  Due
to amateurish programming, SoftRAM in fact almost never expands
system resources under Windows 3.0 and 3.1.  Consequently it is not
of merchantable quality as a program to increase "systems resources."
Even if SoftRAM were enabled under Windows 95, which it is not, it
would not increase system resources.  The problems which existed in
Windows 3.0 which enabled various vendors to sell add-on programs to
expand system resources have largely been eliminated in Windows.

51.  For all these reasons it is false and misleading to claim that
SoftRAM increases "system resources."  Syncronys so knew at all
relevant times.

52.  Likewise the claim "Say good-bye to `Out-of-Memory" messages is
false.

	THE FRAUDULENT CONDUCT

53.  Syncronys is owned in significant part by two
insider-shareholders: Rainer Poertner and Wendell Brown.  Mr.
Poertner is CEO of Syncronys, and Mr. Brown is an officer.  Each of
them knowingly participated in Syncronys' fraud.

54.  At all relevant times Poertner and Brown knew Syncronys did not
have a working RAM compressor.  Nonetheless Poertner and Brown caused
Syncronys to sell SoftRAM as a RAM compressor.  As hereafter used,
"Syncronys" means and refers to Poertner, Brown and Syncronys.

55.  SoftRAM contains a display program.  It shows a display when a
user runs the SoftRAM program.  The purpose of this display is to
falsely communicate to the user that SoftRAM is effective and is
working.  In fact, the display states that "SoftRAM " has been made
available to the computer, even though no such memory is actually
made available to the computer.  The display is as follows:

///
///
///
///
///
///
///
///
///
///

56.  The display program also presents the user with options, which
do nothing.  The sole purpose of Syncronys in creating the "options"
was to create the false impression that the program was compressing
memory, and was responsive to the user's wishes.  Further, Syncronys
advertises: "RAM Analyst dynamically tracks and records the memory
requirements of the application you use and optimizes performance
based on your patterns of usage" and "Advanced setting allow the user
to configure SoftRAM 's behavior."  As Syncronys knew at all times,
each of these claims is false; the dashboard display shown above
lacks functionality. 

	Additional False Representations In Marketing SoftRAM

57.  Microsoft has registered various trademarks in connection with
its Windowsr Products, including the following:

58.  Microsoft licences various persons to use this symbol, and the
words, "Designed For Windows 95."  It issues such a license only
after testing the software for various characteristics, including
architectural compatibility with Windows 95 and integration with
various Windows 95 features.

59.  At all times Syncronys was not licensed to use the windows logo
in conjunction with the words "Designed For Windows 95" and it so
knew.  Nonetheless, Syncronys falsely represented in its advertising
that it had obtained approval for its product from Microsoft ,
including by placing the following on the Syncronys SoftRAM box:

     Designed for

60.  The inclusion of the logo was for the purpose and had the effect
of falsely representing that Microsoft had approved SoftRAM as
designed for Windows 95, when it in fact had not.

	Defendant Retailers Join Conspiracy

61.  Syncronys commenced fraudulent sales of SoftRAM in the first
half of 1996. Initially, Syncronys' wholesalers and retailers were
not part of its fraud. 

62.  By October, 1995, problems with SoftRAM began to receive press
attention.  A reputable German computer magazine, Magazine Fur
Computer Technik (October 12, 1995), published an article by Ingo T.
Storm exposing SoftRAM , and put a copy in English on the Internet,
where it was immediately available in the United States.  

63.  Consequently, Syncronys went forward with its contingency plan.
On +October 20, 1995, Syncronys, as reported by Business Wire,
announced "a problem exists with the Windows 95 version, the net
result of which is that RAM compression is not being delivered to the
operating system.  The company believes that it has identified the
solution to this problem, and its development team is working on a
new upgrade release that will deliver full RAM compression
functionality for Windows 95.  The company anticipates production of
this new upgrade release by early December."

64.  As part of the October 20, 1995, press release, Syncronys
announced "a comprehensive program" to deal with the problem as
follows:

  1) The company will automatically distribute the new upgrade
release free of charge to all registered SoftRAM 95 customers.

  2) The company will post the new upgrade release on AOL,
CompuServe, and other online services so that all SoftRAM 95
customers (whether registered or not) can download it free of charge.

  3) The company will be setting up a home page on the Internet to
make this new upgrade release available to all SoftRAM 95 customers
and to communicate the status of this new upgrade release.

  4) The company will provide an immediate unconditional money-back
guarantee for those SoftRAM 95 customers who are not prepared to wait
for this new upgrade release or are not completely satisfied with it.
In many cases, a full refund may be obtained by returning the product
to the place of purchase.

  If, for any reason, full satisfaction cannot be obtained from the
place of purchase, customers can contact the company with
proof-of-purchase to receive an immediate full refund.

65.  The promises contained in the preceding press release were false
in that SoftRAM lacks the resources to make good on its guarantee and
refund.  The promises were made to further the continued sale of
SoftRAM.

66.  By on or about October 20, 1995, each retailer defendant and
distributor defendant knew that SoftRAM did not work on Windows 95.
Further, each defendant retailer knew that the claims on the SoftRAM
box were untrue, including (a) claims regarding functionality (b)
claims that the product was approved by Microsoft as Windows 95
compatible, and (c) claims that the product was "safe, tested &
guaranteed." 
  
67.  Syncronys offered each retailer of SoftRAM the opportunity to
join in the conspiracy to commit fraud.  Syncronys agreed that if the
retailer would continue to sell the product with the false
representations, that Syncronys would bear the losses associated with
the fact that the product did not function.

68.  Some non-defendant retailers chose to cease selling SoftRAM.
Each defendant retailer, rather than withdraw the product, and rather
than inform the potential customer that the product did not work,
simply secured the agreement of Syncronys that in the event the
customer became dissatisfied, it would be Syncronys which was
responsible for providing an upgrade or a refund.  Since, even
without the availability of an upgrade, most customers do not return
defective software, a profit was to be had.

69.  Thus, as of October 21, 1995, a conspiracy existed between
Syncronys and the defendant retailers that the retailers would
continue to sell SoftRAM which they knew did not work, and in return
Syncronys would agree to bear the resulting liability.

70.  That conspiracy continued until approximately December 17, 1995,
when postings on the Internet by two computer experts, Dr. Mark
Russinovich and Andrew Schulman, a series of news articles, including
PC Magazine (November 7, 1995), San Jose Mercury News (November 18,
1995), and a Time Magazine article (November 27, 1995), follow-up
reporting by Magazine Fur Computer Technik, and FTC demands for a
recall made circumstances untenable for Syncronys.  At that time
Syncronys recalled SoftRAM from store shelves.

71.  Each plaintiff and each class member relied upon the false
representations set forth in this complaint and was injured not less
than to the extent of the purchase price of SoftRAM 95.  Due to badly
written installation and deinstallation software, some class members
suffered additional damage to their computer system.

	All Elements of An Actionable Fraud Are Present

72.  All elements of a fraud cause of action are present as set forth
in, e.g., Schultz v. Harney, 27 Cal.App.4th 1611, 1620 (1994): (1)
misrepresentation, including by implication a misrepresentation of
fact; (2) knowledge that the representation is false; (3) intent to
defraud; (4) justifiable reliance; (5) resulting damage.

73.  The misrepresentations are those which have been set forth in
this complaint.  Every plaintiff and every class member saw the
representations prior to purchasing the product, in writing.

74.  Syncronys and the defendant coconspirators knew at all relevant
times that the representations were false.  Each other defendant
learned that the representations were false and joined the
conspiracy.

75.  Each defendant intended to defraud.

76.  Each plaintiff and each class member justifiably relied on the
representations.

77.  Punitive damages are appropriate.

	SECOND CAUSE OF ACTION

	BREACH OF THE WARRANTY OF MERCHANTABILITY

78.  Plaintiffs incorporate by reference all allegations of this complaint.

79.  This cause of action is brought by all plaintiffs on behalf of
themselves and the class, against all defendants.

80.  Each sale of SoftRAM carried with it an implied warranty of
merchantability.  This implied warranty existed because no attempt to
disclaim it was available to the purchaser prior to the purchase.

81.  The Implied Warranty of Merchantability existed under California
Civil Code Section 1791.1, because each sale was a sale of consumer
goods.  The same Implied Warranty of Merchantability exists under the
Uniform Commercial Code or similar provisions applicable to each
plaintiff.  Commercial Code Section 2314 provides that such a
warranty of merchantability exists if the seller is a merchant with
respect to goods of that kind.  Each retailer defendant is a merchant
with respect to computer programs.

82.  SoftRAM was sold to each plaintiff and each class member under
the contract description as "RAM Doubling & Resource Expansion
Software."  SoftRAM does not pass without objection in the trade
under the contract description. 

83.  Each plaintiff and each class member purchased SoftRAM in a
package containing all representations alleged in this complaint,
including that SoftRAM "takes your Windows memory and at least
doubles it"; that SoftRAM will "instantly speed up windows", that
SoftRAM is "safe, tested & guaranteed", and that "RAM AnalystO
dynamically tracks and records the memory requirements of the
applications you use and optimizes performance based on your patterns
of usage."

84.  Each defendant joined in the conspiracy and enterprise of the
defendants in selling SoftRAM and is jointly and severally liable for
all sales of SoftRAM.

	THIRD CAUSE OF ACTION

	UNFAIR COMPETITION


85.  Plaintiffs incorporate by reference all allegations of this complaint.

86.  The allegations of this complaint establish unfair competition
within the meaning of Business and Professions Code Section 17200 et
seq.  Those business practices will continue unless enjoined.

87.  Plaintiffs seek injunction and restitution.

88.  Plaintiffs ask:	

1.  That defendants be temporarily and permanently enjoined from 
engaging in false, deceptive, and misleading advertising of 
the nature set forth in this complaint;

2.  That defendants give damages and restitution to all persons who 
have purchased SoftRAM in the amount of the purchase price 
paid by them;

3.  That defendants pay punitive damages to plaintiffs and each class member;

4.  That defendants pay consequential damages according to proof;

5.  That defendants pay plaintiff and plaintiff's attorney the costs of 
suit together with a reasonable attorney's fee; and 

6.  That this court grant all further relief which is appropriate.

Dated: January 2, 1996								
Donald P. Driscoll
Attorney for Plaintiff
  10/30/95 

