Burke et al v. Apple Inc et al
COMPLAINT against Apple Inc, Pandora Media Inc (Filing fee $350 Receipt# B4601022302), filed by Marcia Burke, William C Burke, III.(AVC)
2011 Apr-25 AM 10:34
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MARCIA BURKE and WILLIAM C.
BURKE, III, Individually and on Behalf of
All Others Similarly Situated,
APPLE, INC., a Delaware Corporation;
PANDORA MEDIA, INC., a California
Corporation; DOES 1-10,
) Case No:
) CLASS ACTION COMPLAINT
) JURY TRIAL DEMANDED
CLASS ACTION COMPLAINT
On behalf of themselves and all others similarly situated, Plaintiffs MARCIA BURKE
and WILLIAM C. BURKE, JR. bring this action against Defendants, APPLE, INC., PANDORA,
INC., and DOES 1-10, inclusive (collectively, “Defendants”), in support thereof allege as
follows, all on information and belief except where specifically identified, which allegations are
likely to have evidentiary support after further investigation and discovery:
This lawsuit involves the intentional interception, by Defendants, of Plaintiffs’
personally identifying information (“PII”) data by using iPhone and iPad mobile device
applications (“Apps”) without consumers’ knowledge or advance and informed consent.
Defendants capture Plaintiffs’ devices Unique Device ID (“UDID”) – the unique identifying
number that Apple, Inc. (“Apple”) assigns to each of these iPhones and iPads – and transmits
that information along with the devices’ location data to third-party advertisers. Apple, as a joint
venturer with the remaining Defendants, aids and abets this intentional taking and transmitting of
Plaintiffs’ PII. All of this is done without Plaintiffs’ consent and in violation of their legal rights.
Plaintiffs bring this lawsuit to rectify this wrong being systematically perpetrated upon them.
This Court has jurisdiction over this action pursuant to 28 U.S.C. §1332 (federal
diversity jurisdiction), as one or more members of the proposed class are residents of a different
state from Defendants and the amount in controversy likely exceeds the jurisdictional amount
required by that code section. This Court has jurisdiction pursuant to 28 U.S.C. §1331 (federal
question jurisdiction), as it involves allegations of violation of federal law. This Court has
pendent jurisdiction of all alleged state law claims.
Venue is proper pursuant to 28 U.S.C. §1391 because a substantial part of the
events or omissions giving rise to the claim occurred in the Northern District of Alabama and
are authorized to conduct business in this District and have
intentionally availed themselves of the laws and markets within this District through the
promotion, marketing, distribution and sale of their products in the Northern District of
conduct substantial business in the Northern District of Alabama; and
are subject to personal jurisdiction in the Northern District of Alabama.
The Court has personal jurisdiction over Defendant because they are corporations that have
sufficient minimum contacts in Alabama, otherwise intentionally avail themselves of the
Alabama market through their marketing and sales of the Products in the State of Alabama,
and/or by having such other contacts with Alabama so as to render the exercise of jurisdiction
over them by the Alabama courts consistent with traditional notions of fair play and substantial
On personal knowledge, Plaintiff, MARCIA BURKE, is a resident of Tuscaloosa
County, Alabama and has owned an iPhone and had the Pandora iPhone App installed on her
iPhone during the Class period. None of the Defendants adequately disclosed to Plaintiff either
before or after downloading the App that they were transmitting personal data about her to thirdparty advertising networks as set forth below, and she would not have used this App to the extent
she has, if at all, had the true facts been timely disclosed.
On personal knowledge Plaintiff, WILLIAM C. BURKE, JR., is a resident of
Tuscaloosa County, Alabama, and has owned an iPhone and had the Pandora iPhone App
installed on his iPhone during the Class period. None of the Defendants adequately disclosed to
Plaintiff either before or after downloading the App that they were transmitting personal data
about him to third-party advertising networks as set forth below, and he would not have used this
App to the extent he has, if at all, had the true facts been timely disclosed.
Defendant, APPLE, INC. (“Apple”), is a California corporation with its principal
place of business lat 1 Infinite Loop, Cupertino, California 95014. Apple manufactures and sells
the popular mobile phone, the iPhone, as well as the iPad.
Defendant PANDORA MEDIA, INC. (“Pandora”), is a Delaware Corporation
with its principal place of business at 2101 Webster Street, Suite 1650, Oakland, California
94612. Defendant, Pandora, is the maker of the iPhone App, Pandora.
DOES 1-10 are individuals, associations or corporations that are affiliated or
related to Defendants, who will be specifically identified and named as discovery progresses and
their roles in the wrongdoing at issue is revealed.
At all times mentioned in the Causes of Action alleged herein, each and every
Defendant was an agent, representative, affiliate, or joint venturer of each and every other
Defendant, and in doing the things alleged in the Causes of Action stated herein, each and every
Defendant was acting within the course and scope of such agency, representation, affiliation, or
venture and was acting with the consent, permission and authorization of the other Defendants.
During the relevant time period, Defendants agreed to misrepresent to the Class
members the material facts at issue herein and/or not to notify Class members about the scope
and nature of the illegal business practices as detailed herein, thus engaging in a conspiracy that
resulted in injury in fact to members of the Class, which conspiracy is still on-going.
All actions of each Defendant, as alleged in the Causes of Action stated herein,
were ratified and approved by the other Defendants or their respective directors, officers and/or
managing agents, as appropriate for the particular time period alleged herein.
Whenever this Complaint refers to any act or acts of Defendants, the reference
also is to mean that the directors, officers, employees, affiliates, or agents of the responsible
defendant authorized such act while actively engaged in the management, direction or control of
the affairs of Defendants and/or by persons who are the alter egos of Defendants,
To the extent this Complaint refers to the actions of individuals, the reference also
is to mean that such acts were taken while such persons were acting within the scope of their
agency, affiliation, or employment.
Whenever this Complaint refers to any act of Defendants, the reference shall be
deemed to be the act of each defendant, jointly and severally.
STATEMENT OF FACTS
This is a consumer class action lawsuit pursuant to Federal Rules of Civil
Procedure 23(a) and (b)(2)/(b)(3).
The basis for Plaintiffs’ claims rest on Defendants’ collective use of an intrusive
tracking scheme implemented through the use of mobile device Apps on Plaintiffs’ iPhones and
Apps are computer programs that users can download and install on their mobile
computer devices, including iPhones and iPads.
While Apps have been available for some time, it was with the introduction of
Apple’s iPhone in 2007 that Apps propelled themselves into a position of prominence in the
daily lives of many mobile device users.
The iPhone enabled millions of mobile phone users to more effectively and more
intuitively access the Internet and perform the computer functions that have become increasingly
important in today’s world. In addition, the iPhone features numerous games and other forms of
entertainment for its users. These electronic high speed data processing devices are capable of
performing logical, arithmetic, or storage functions and as a data storage or communications
facility, and are intended to be used in interstate or foreign commerce or communications.
The iPhone allows users to install after-market programs, called Apps, onto their
mobile device. This allows users, such as Plaintiffs, to customize their iPhones to perform
functions other than those that the phones could perform when they were initially sold to the
Apple, as well as each of the Defendants, is aware of what type of personal
consumer information is required and gathered by an App installed on an iPhone or iPad,
because Apple has retained significant control over the software that users can place on their
iPhones. Apple claims that this control is necessary to ensure smooth functioning of the iPhone.
iPhone users are only allowed to download software specifically licensed by
Apple. If a user installs any software not approved by Apple, the users’ warranty is voided. If
the user updates the operating system on their iPhone, the non-licensed software is erased by
Apple also retains a significant amount of control over the types of Apps it
allows. Whether an App is allowed to be sold in the App Store is completely at the discretion of
Apple. Apple requires that proposed Apps go through a rigorous approval process. Even if an
App meets the “Program” requirements (as Apple describes it) the App can still be rejected by
Apple for any reason at all. It is estimated that approximately twenty percent (20%) of all
requests to place Apps for sale in the iTunes App Store are rejected by Apple. In exchange for
Apple agreeing to allow the App developer to participate in its “Program”, Apple retains thirty
Apple also exercises a significant amount of control over the functionality of the
Apps that it allows into its “Program”. For instance, Apple restricts how Apps interact with the
iPhone’s operating system and restricts Apps from disabling certain safety features of the iPhone.
Apple’s App Store has been a huge success. As of October 20, 2010, there were
at least 300,000 third-party applications officially available on the App Store, with seven (7)
billion total downloads. Market researcher, Gartner Inc., estimates that world-wide App sales
this year will total $6.7 billion.
Approximately fifty-nine (50) million people now have an iPhone. With the
subsequent introduction of its iPad (estimated sales of 8.5 million in 2010), Apple has obtained a
remarkable reach for its products.
Thanks in part to the iPhone’s tremendous commercial success, mobile devices
(including iPhones and iPads) are now used by many consumers in numerous facets of their daily
lives, from making travel arrangements to conducting banking transactions.
convenience is valuable and material to consumers who purchase these products and is a
substantial factor in them doing so, the information that consumers put into their mobile devices
is equally important and not intended to be publicly shared.
Because Apps are software that users, such as Plaintiffs, download and install on
their iPhone, Apps have access to a huge amount of information about a mobile device user.
Apps can have access to such items as a mobile device’s contacts list, username and password,
and perhaps most importantly, the user’s location information. Plaintiffs in this action consider
the information on their phone to be personal and private information.
All of this information, however, is of extreme interest to many advertising
networks. This information is also highly valuable. It is for this reason that many Apps are
given away for free by the developer, so that the App developer can sell advertising space on its
App. Some advertising networks pay App developers to place banner ads within their Apps.
Those ads are then populated with content from the third-party advertising network. In the
process, those third-party advertisers are able to access various pieces of information from the
user’s iPhone, supposedly in order to serve ads to the App user that are more likely to be of
interest to them.
Just as with the advent of widespread use of the internet back in the late 1990s,
considering that mobile advertising is projected to be a $1.5 billion a year industry by 2016,
advertisers, website publishers, and ad networks are seeking ways to better track their web users
and find out more about them. The ultimate goal of many advertising networks is to ascertain
the identity of particular users so that advertisements can be tailored to their specific likes and
A piece of software known as “browser cookies” are the traditional method used
by advertisers to track web users’ activities. Browser cookies have a large hurdle when it comes
to an advertiser’s ability to track a viewer – users can delete them because they do not want
advertising companies to have information about them.
Defendants, however, have found their solution – the Unique Device ID
(“UDID”) that Apple assigns to every iPhone and iPad it manufactures. Apple’s UDID is an
example of a computing device ID generally known as a global unique identifier (“GUID”). A
GUID is a string of electronically readable characters and/or numbers that is stored in a
particular device or file for purposes of subsequently identifying the device or file. Thus, a
GUID is similar to a serial number in that it is so unique that it reliably distinguishes the
particular device, software copy, file, or database from others, regardless of the operating
Because the UDID is unique to each iPhone and iPad, it is an attractive feature for
third-party advertisers looking for a means of reliably tracking a mobile device users’ online
activities. Because the UDID is not alterable or deletable by a iPhone or iPad user, some have
referred to the UDID as a “supercookie.” This description aptly summarizes the desirability of
access to the UDID from an advertising perspective.
These types of software can potentially be more intrusive than traditional cookies.
Unlike with desktop computers, mobile devices travel most everywhere with the user. Also,
mobile devices tend to be unique to an individual. While someone might borrow someone’s
mobile device briefly, it is unusual for individuals to frequently trade mobile devices with
someone they know.
Furthermore, unlike a desktop computer, the iPhone and iPad come equipped with
the tools necessary to determine their geographic location. Thus, being able to identify a unique
device, and combining that information with the devices’ geographic location, gives the
advertiser a huge amount of information about the user of a mobile device. From the perspective
of advertisers engaged in surreptitious tracking, this is a perfect means of tracking mobile device
users’ interests and likes on the Internet.
Apple understands the significance of its UDID and users’ privacy, as internally,
Apple claims that it treats UDID information as “personally identifiable information” because, if
combined with other information, it can be used to personally identify a user.
Unfortunately, however, unlike with browser cookies, Apple does not provide
users any way to delete or restrict access to their devices’ UDIDs. Traditional efforts to
prevent Internet tracking, such as deleting cookies, have no effect on Apps’ access to an iPhone’s
or iPad’s UDID.
Apple has, however, recognized that it could go further to protect its users’
private information from being shared with third parties. Thus, in April of 2010, Apple amended
its Developer Agreement purporting to ban Apps from sending data to third-parties except for
information directly necessary for the functionality of the App. Apple’s revised Developer
Agreement provides that “the use of third party software in Your Application to collect and send
Device Data to a third party for processing or analysis is expressly prohibited.”
This change prompted a number of third-party advertising networks who have
(undisclosed to users) been receiving a steady flow of user data from iPhone and iPad Apps) to
protest. One prominent critic was the CEO of AdMob. It appears that, as a result of this
criticism, Apple has taken no steps to actually implement its changed Developer Agreement or
enforce it in any meaningful way.
Each of the non-Apple Defendants, through the use Apps placed on Plaintiffs’
mobile devices, either accessed Plaintiffs’ UDID and location information and transmitted that
information to numerous third-party ad networks or conspired with the other Defendants to keep
that information hidden from the general public.
The general practice engaged in by Defendants as described above was brought to
light by Eric Smith, Assistant Director of Information Security and Networking at Bucknell
University in Lewisburg, Pennsylvania and reported in his research report entitled, “iPhone
Applications & Privacy Issues: An Analysis of Application Transmission of iPhone Unique
Further, The Wall Street Journal, as reported in the article “Your Apps Are
Watching You,” Scott Thurm and Yukari Iwatani Kane (December 18, 2010) independently
confirmed that each non-Apple Defendant systematically uses its iPhone App to obtain iPhone
users’ UDID and location data and transmit it to multiple third parties.
None of the Defendants adequately informed Plaintiffs or Class members of their
practices or obtained Plaintiffs’ consent to do so.
Apple’s 15-page, single spaced terms of service states: “By using any location-
based services on your iPhone, you agree and consent to Apple’s and its partners and licensees’
transmission, collection, maintenance, processing, and use of your location data to provide such
products and services.” The iPad terms of service is nearly identical.
Pandora is a mobile device application owned by Defendant, Pandora Media, Inc.
Pandora is a music application that allows users to access, stream and download digital music
files. Pandora shares its users’ UDID and Age, Gender and/or Location (City, ZIP Code and
DMA Code) with third parties, including ad networks. No location based service is involved.
There are no location based services involved in these Apps that would justify
access to Plaintiffs’ location data. When this information is combined with Plaintiffs’ UDID
information, it becomes PII. None of these Defendants adequately disclosed to Plaintiffs or
Class members that they are transmitting such information to third-party advertising networks.
What makes such unauthorized access all the more alarming is that these devices
record consumers’ actual geographic locations. According to an April 21, 2011 article in the
International Business Times entitled “How Apple’s iPhone and iPad Secretly Store A Users’
Location Data” (http://www.ibtimes.com/articles/136838/20110421), researchers Pete Warden
and Alasdair Allan reported in TechTree that they have discovered that iPhones and 3G iPads
that use the iOS4 operating system regularly record users’ position into a hidden database file
Manifest.mbdx files contain a listing of the real names of the files represented by random strings
in that folder. These folders store a long list of latitude-longitude coordinates and timestamps by
the second. The coordinates are not always exact, but there are typically tens of thousands of
data points. The location is likely being determined by cell-tower triangulation, either triggered
by traveling between cells or activity on the device itself. Furthermore, all this data is being
stored across backups, and even device migrations.
To make matters worse, the file on the devices with said data is unencrypted and
unprotected, and is on any machine synced with such devices. According to Warden and Allan,
the key problem is: “That this data is stored in an easily-readable form on your machine. Any
other program you run or user with access to your machine can look through it. [Emphasis
added.]” While cellular telephone companies have always collected such data, it is kept behind
company firewalls and takes a court order to access it. Now this information is sitting in plain
view on these devices, unprotected from the world. It is not clear why Apple is gathering these
data points, although the way it is implemented shows that it is intentional.
researchers reported that from what they could tell the data are not being siphoned from the
device to another source, it would be quite easy if they are not already doing so for Defendants,
having previously accessed the devices using unauthorized means, to locate such data. Indeed,
there is evidence that in fact this occurs, since devices operating outside the United States that
run various Apps deliver foreign language or foreign country advertisements, which would be
possible if present location based data were being transmitted to third party advertisers.
The UDID and location information obtained by each non-Apple Defendant was
sent to multiple third-party advertising networks.
In the case of Defendant Pandora, this
information was sent to eight third parties.
As discussed above, Apple considers users’ UDID information to be PII data. By
attempting to change its App Development criteria, Apple demonstrated that it is aware of the
dangers posed by transmission of user data to third parties. Apple has simply failed to follow
through on that conviction.
Plaintiffs and members of the Class were injured in fact and lost control of their
personal property by Defendants’ actions in that their personal, private PII data were obtained by
third parties they were not dealing with without or beyond their knowledge or consent -- similar
to confidentially providing an individual with their unlisted cellular telephone number and then
having them publicly announce it. Plaintiffs and members of the Class were further harmed in
that their personal property in terms of their iPhone or their iPad was hijacked and turned into a
device capable of spying on their every online move.
Plaintiffs’ valuable UDID information, demographic information, location
information, as well as their application usage habits is a valuable commodity that has a property
value to research firms. Indeed, the non-Apple Defendants are paid money by third party
advertisers in exchange for having access to such information, demonstrating a market value for
Plaintiffs also consider this information to be personal and private data. Such
information was taken from them without their knowledge or consent. Plaintiffs should be
compensated for this harm and are entitled to compensation for this invasion of their privacy.
Each of the non-Apple Defendants is liable to Plaintiffs and the Class for
violation of their statutory and common-law rights. Defendant Apple, by exercising significant
control over App developers and sharing profits with them, has created a “community of
interest” with the other Defendants to render them joint venturers, who are responsible for each
other’s torts in that they are all equally aware of, but did not disclose, the extent of their
information gathering capabilities. Defendant Apple has also aided and abetted the remaining
Defendants in the commission of their legal wrongs against Plaintiffs and the Class. Based on
the above, Apple and the other Defendants have acted sufficiently in concert with each other to
impose liability as to all Class members.
Plaintiffs and members of the Class bring this action to redress this illegal and
intrusive scheme designed by Defendants to intrude into their personal lives and collect personal
information about them without first obtaining their advance authorization and consent.
Plaintiffs seek monetary relief for their injuries, an injunction to protect those not
yet harmed by these illegal activities, and, where legally available, attorneys’ fees and other costs
associated with the bringing of this action.
Defendant Apple Aided and Abetted the Other Defendants
Defendant Apple knew or should have known the other Defendants’ conduct
constituted a breach of those Defendants’ duties to Plaintiffs and the Class.
Defendant Apple gave substantial assistance to the other Defendants in
committing the acts alleged in this Complaint. Furthermore, Apple had a duty to Plaintiffs and
the Class to take steps to prevent such harm.
Such conduct by Apple constitutes Aiding and Abetting pursuant to Alabama law
and imposes liability on Defendant Apple for the other Defendants’ torts, as outlined below.
Defendant Apple is in a Joint Venture with the Other Defendants
Defendant Apple’s conduct and that of the remaining Defendants constitutes an
undertaking by two or more persons jointly to carry out a single business enterprise for profit.
By reviewing each App, setting the conditions for and requirements for Apps to
be sold and partnering with the above-named App developers in the sale of those Apps, Apple
has created a “community of interest” in a common undertaking of which each partner has or
exercises the right of control and direction of the undertaking.
By sharing the profits of all App sales of the other Defendants’ applications
through the iTunes App store, Apple is a joint venturer with each of the remaining Defendants.
All members of a joint venture are jointly and severally liable for injuries
resulting from the tortuous conduct alleged in each of the Counts.
CLASS ACTION ALLEGATIONS
Pursuant to Fed. R. Civ. P. 23(b)(2) and 23(b)(3) Plaintiffs bring this action on
behalf of themselves, and all others similarly situated, as representatives of the following class
Each and every individual in the United States of America who has placed one of
the Defendants’ iPhone Apps or iPad Apps on their iPhone or iPad in the four
years preceding December 18, 2010 (the “Class”).
Excluded from the Class are Defendants as well as all employees of the judges
assigned to this action in this Court, their spouses and any minor children living
in their households and other persons within a third degree relationship to any
such federal judge; and finally, the entire jury venire called to for jury service in
relation to this lawsuit. Also excluded from the Class are any attorneys or other
employees of any law firms hired, retained and/or appointed by or on behalf of
the named Plaintiffs to represent the named Plaintiffs and any/or any proposed
class members or proposed class in this lawsuit.
Furthermore, to the extent that undersigned counsel has any legal interest to
damages or other monetary relief, or other relief due to the putative class (or any
other rights as potential putative class members), arising as a result of the causes
of action asserted in this litigation, such interest is hereby disclaimed by
The requirements of Fed. R. Civ. P. 23 are met in this case. The Class, as defined,
is so numerous that joinder of all members is impracticable.
Although discovery will be
necessary to establish the exact size of the class, it is likely, based on the nature of Defendants’
businesses, that it numbers in the millions of persons.
There are questions of fact and law common to the Class as defined, which
common questions predominate over any questions affecting only individual members. The
common questions include:
whether Defendants, as a regular practice, obtained and
disseminated the Class members’ PII data without their knowledge and without
first adequately containing their consent, or beyond the scope of any consent
whether Defendants failed to disclose material terms regarding the
collection and dissemination of the Class members’ PII data;
what use was made of the Class members’ PII data, including to
whom the information was sold for a profit;
whether Defendants used iPhone Apps or iPad Apps to send
Plaintiffs’ UDID, location and/or Username/password information to third
whether Plaintiffs’ PII data were used to track their activity.
Plaintiffs can and will fairly and adequately represent and protect the interests of
the Class as defined and have no interests that materially conflict with the interests of the Class.
This is so because:
All of the questions of law and fact regarding the liability of the
Defendants are common to the Class and predominate over any individual
issues that may exist, such that by prevailing on their own claims, Plaintiffs will
necessarily establish the liability of the Defendants to all Class members;
Without the representation provided by Plaintiffs, it is unlikely that
any Class members would receive legal representation to obtain the remedies
specified by relevant statutes and the common law;
Plaintiffs have retained competent attorneys who are experienced
in the conduct of class actions. Plaintiffs and their counsel have the necessary
resources to adequately and vigorously litigate this class action, and Plaintiffs and
their counsel are aware of their fiduciary responsibility to
the Class members
and are determined to diligently discharge those duties to obtain the best possible
recovery for the Class.
Defendants’ actions have affected numerous consumers in a similar way. This
class action is superior to any other method for remedying Defendants' actions given that
common questions of fact and law predominate. Class treatment is likewise indicated to ensure
optimal compensation for the Class and limiting the expense and judicial resources associated
with thousands of potential claims.
CAUSES OF ACTION
COMPUTER FRAUD AND ABUSE ACT (“CFAA”),
18 U.S.C. § 1030
(By Plaintiffs Against All Defendants)
Plaintiffs incorporate by reference each proceeding and succeeding paragraph as
through set forth fully at length herein.
By accessing and transmitting Plaintiffs’ UDID and location data on the devices
of Plaintiffs and members of the Class, Defendants have accessed Plaintiffs’ devices, in the
course of interstate commerce and/or communication, in excess of the authorization provided by
Plaintiffs as described in 18 U.S.C. §1030(a)(2)(C).
Defendants violated 18 U.S.C. §1030(a)(2)(C) by intentionally accessing
Plaintiffs’ and members of the Class’s devices without having first received informed
authorization and consent and/or by exceeding the scope of that authorization.
Plaintiffs’ devices, and those of the Class, satisfy the definition of "protected
computers" pursuant to 18 U.S.C. §1030(e)(2), as the devices in question are an electronic or
other high speed data processing device that perform logical, arithmetic, or storage functions,
including as a data storage facility or communications facility directly related to or operating in
conjunction with such devices and is used in or affecting interstate or foreign commerce or
Defendants further violated the Act by causing the transmission of a program,
information, code or command and as a result caused harm to the Class aggregating at least
$5,000 in value.
Defendants’ actions were knowing and/or reckless and, as outlined above, caused
harm to Plaintiffs and members of the proposed class.
Plaintiffs seek recovery for this loss, as well as injunctive relief, to prevent future
TRESPASS TO PERSONAL PROPERTY
(By Plaintiffs Against All Defendants)
Plaintiffs incorporate by reference each proceeding and succeeding paragraph as
though set forth fully at length herein.
By obtaining UDID and location data from Plaintiffs’ and members of the Class’
devices without or beyond the scope of their consent or knowledge, Defendants have improperly
exercised dominion and control over Plaintiffs’ and members of the Class’s personal property.
Defendants’ actions were done knowingly and intentionally.
Defendants’ actions caused harm to Plaintiffs and members of the Class¸ as
Plaintiffs and the proposed class seek damages for this harm as well as injunctive
relief to remedy this harm.
COMMON LAW CONVERSION
(By Plaintiffs Against All Defendants)
Plaintiffs incorporate the above allegations by reference as if set forth herein at
Defendants have taken Plaintiffs’ property in the form of PII data about them that
is private and personal.
Plaintiffs have been harmed by this exercise of dominion and control over their
Plaintiffs bring this case seeking recovery for their damages and appropriate
COMMON COUNTS, ASSUMPSIT, AND UNJUST ENRICHMENT/RESTITUTION
(By Plaintiffs Against All Defendants)
Plaintiffs incorporate the above allegations by reference as if set forth herein at
Defendants entered into a series of implied at law contracts with Plaintiffs and the
Class that resulted in money being had and received by Defendants at the expense of Plaintiffs
and members of the Class under agreements in assumpsit. Defendants have been unjustly
enriched by the resulting profits enjoyed by Defendants as a result of such agreements.
Plaintiffs’ detriment and Defendants’ enrichment were related to and flowed from the conduct
challenged in this Complaint.
Under common law principles recognized in claims of common counts, unjust
enrichment, restitution and/or assumpsit, Defendants should not be permitted to retain the
benefits conferred upon them based on the taking of PII data from Plaintiffs and Class members
and converting it into revenues and profits.
Under the principles of equity and good conscience, Defendants should not be
permitted to retain the benefits they have acquired through the unlawful conduct described
These actions constitute violations of both statutory as well as common law
obligations as outlined above.
Plaintiffs and members of the Class seek restitutionary disgorgement of all profits
of such amounts and the establishment of a constructive trust from which Plaintiffs and Class
members may seek restitution, as all funds, revenues and benefits that Defendants have unjustly
received as a result of their actions rightfully belong to Plaintiffs and the Class. Plaintiffs also
seek declaratory relief as to the rights and responsibilities of all parties to such implied at law
WHEREFORE, Plaintiffs demand judgment on their behalf and on behalf of the other
members of the Class to the following effect, as appropriate and applicable for the particular
cause of action:
Declaring that this action may be maintained as a class action;
Granting judgment in favor of Plaintiffs and the other members of the Class
Exemplary damages should the Court find that the Defendants acted in willful or
reckless disregard of the law;
Declarations that Defendants’ acts and practices alleged herein are wrongful;
An order directing restitution or disgorgement in an allowable amount to be
proven at trial;
Statutory or compensatory damages in an amount to be proved at trial;
Pre- and post-judgment interest to the maximum extent permissible;
An award to Plaintiffs and the Class of their costs and expenses incurred in this
action, including reasonable attorneys’ fees, to the extent permissible;
Injunctive relief preventing Defendant from further collecting and disseminating
the Class’ PII data and/or requiring more detailed disclosure and informed consent from the
Class regarding this activity; and
Such other relief as the Court deems appropriate.
DEMAND FOR JURY TRIAL
Plaintiffs demand a trial by jury of all issues and cause of action so triable.
DATED: April 22, 2011
/s/ E. Kirk Wood_______________
E. Kirk Wood (ASB-2397-W55E)
Attorney for Plaintiffs
E. Kirk Wood
Wood Law Firm, LLC
P.O. Box 382434
Birmingham, Alabama 35238-2434
Telephone: (205) 612-0243
Facsimile: (866) 747-3905
REQUESTS FOR SERVICE BY CERTIFIED MAIL
Pursuant to MRCP 4.1 and 4.2, Plaintiffs request service of the foregoing Complaint by certified
/s/ E. Kirk Wood
E. Kirk Wood
Attorney for Plaintiffs
SERVE DEFENDANTS BY CERTIFIED MAIL AS FOLLOWS:
1 Infinite Loop
Cupertino, California 95014-2084
Pandora Media, Inc.
2101 Webster Street, Suite 1650
Oakland, California 94612
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