Moree v. Carrier IQ Incorporated et al

Filing 1

COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-6142570, filed by Jerimiah Thomas Moree (submitted by Burton Rosenblatt). (Attachments: # 1 Civil Cover Sheet)(REK)

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Burt Rosenblatt, Esq., AZ Bar No. 014023
ELY, BETTINI, ULMAN & ROSENBLATT
3200 N. Central Ave., Ste. 1930
Phoenix, AZ 85012
Phone:[phone]
[e-mail]

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In Association with:
Eric D. Holland, Esq.
Steven J. Stolze, Esq.
Steven L. Groves, Esq.
HOLLAND, GROVES, SCHNELLER
& STOLZE, LLC
300 N. Tucker, Suite 801
St. Louis, MO 63101
Phone:[phone]
[e-mail]
[e-mail]
[e-mail]

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Attorneys for Plaintiff

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UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
JERIMIAH THOMAS MOREE, individually, )
and on behalf of all others similarly situated, )
)
Plaintiffs,
)
vs.
)
)
CARRIER IQ, INC.; HTC, INC., HTC
)
AMERICA, INC.;
)
)
Defendants.
)
_____________________________________ )

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No.

COMPLAINT

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COMES NOW Plaintiff, individually, and on behalf of all others similarly

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situated, by and through their undersigned counsel, on information and belief, and for

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their Complaint against Defendants Carrier IQ, Inc., HTC, Inc. and HTC America, Inc.

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state as follows:

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1.

Defendants

have

unlawfully

intercepted

private

electronic

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communications emanating from private mobile phones, handsets and smart phones.

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This practice violates Federal Law.

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PARTIES, JURISDICTION AND VENUE
2.

Jerimiah Thomas Moree is a natural person and citizen and resident of

the State of Arizona.
3.

All references to “Plaintiff(s)” throughout this Complaint are made on

behalf of the named Plaintiff(s) and the proposed plaintiff class(es), and vice versa.
4.

The amount in controversy in this action, as defined by 28 U.S.C. §

1332(d)(6), exceeds $5,000,000 exclusive of costs and interest.
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Defendant, Carrier IQ, Inc. (hereinafter referred to as “CIQ”) is a citizen

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of California as defined by 28 U.S.C. § 1332(c) with its principal place of business in

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California.

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6.

Defendants HTC, Inc. and HTC America (collectively referred to as

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“HTC”) are citizens of Washington, with their principle place of business in Bellevue,

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Washington.

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7.

Defendants are residents of the District of Arizona as they have ongoing

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and systematic contacts with residents of the District of Arizona. Defendants have, at

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all material times, conducted business in the District of Arizona.

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Defendants have sufficient minimum contacts with the State of Arizona such that the

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Moreover,

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assumption of jurisdiction will not offend traditional notation of fair play and

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substantial justice.

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When reference in this Complaint is made to any act or omission of

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Defendants, it should be deemed to mean that the officers, directors, agents,

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employees, or representatives of Defendants committed or authorized such act or

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omission, or failed to adequately supervise or properly control or direct their

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employees while engaged in the management, direction, operation, or control of the

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affairs of Defendants, and did so while acting within the scope of their employment or

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agency.

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STATEMENT OF FACTS
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Defendant, CIQ is the leading provider of mobile services intelligence

solutions to the wireless industry.
10.

Defendant, CIQ claims on their website “As the only embedded analytics

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company to support millions of devices simultaneously, we give wireless carriers and

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handset manufacturers unprecedented insight into their customers mobile experience.”

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Defendant, CIQ uses software in mobile phones to measure performance

and user experience with no visible notice or impact to the user.
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Defendant, CIQ’s data processing center collects the data for near real-

time monitoring and intelligence.
13.

Defendant, CIQ is the only company in the industry embedding

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diagnostic software in millions of mobile phones, having done so in over 130 million

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phones globally.

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Defendant CIQ states on their website “Identify exactly how your

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customers interact with services and which ones they use. See which content they

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consume, EVEN OFFLINE “ (caps added).

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15. They further state on their website that their software answers business
critical questions including “How do users respond to mobile advertising”.

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16. Their website further states that their software features include “View

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application and device feature usage, such as camera, music, messaging, browser and

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TV”.

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17. Defendant CIQ further states that their services give “uniquely powerful

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insight into mobile service quality and USER BEHAVIOR”(caps added), allowing the

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customer to “identify new business opportunities”.

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18. Defendant further states that their software “uses data directly from the

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mobile phone itself to give a precise view of how users interact with both their phones

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and the services delivered through them, EVEN IF THE PHONE IS NOT

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COMMUNICATING WITH THE NETWORK….

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customers interact with services and which ones they use. SEE WHICH CONTENT

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THEY CONSUME, EVEN OFFLINE” (caps added).

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19.

Identify

exactly how your

Privacy concerns surrounding Carrier IQ initially arose after Trevor

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Eckhart, a security researcher, posted a video which seemingly demonstrated Carrier

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IQ’s keystroke logging, even offline.

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20. Carrier IQ’s patent application #20110106942 contains claims regarding the

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collection of keystroke data, describing their product as a “method of collecting

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data…wherein the data relates to an end user’s interaction with the device…wherein

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the interaction with the device comprises the end user’s pressing of keys on the

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device”.

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21. A CIQ representative has been quoted in response to the privacy concerns

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as follows:

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///

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///

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Andrew Coward-Chief marketing officer

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“We’re as surprised as anybody to see all that information flowing. It raises a
lot of questions for the industry-and not (only) for Carrier IQ”. CARRIER IQ:
WE’RE AS SURPRISED AS YOU. CNNMoney.com 12/02/11

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“We do recognize the power and value of this data. We’re very aware that this
information is sensitive. It’s a treasure trove….We’re seeing URLS and we can
capture that information”. CARRIER IQ ADMITS HOLDING TREASURE
TROVE OF CONSUMER DATA, BUT NOT KEYSTROKES: Wired.com
12/02/2011

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In an interview with Wired.com said “probably yes” when asked whether
Carrier IQ could read mobile users’ text messages. CRITICS LINE UP TO
BASH MAKER OF SECRET PHONE-MONITORING SOFTWARE:
Wired.com 12/01/11

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22.

Defendant, CIQ captures and records every keystroke entered on the

mobile device, as well as location and other data.
23.

Defendant, HTC produces mobile phones and handsets, including

“Android” smart phones.

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24.

The CIQ software is embedded in HTC Android phones.

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25.

The information collected by CIQ is transmitted to various service

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providers, including Sprint, AT&T and T-Mobile.
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Plaintiff owns an HTC Android phone using the Sprint network. At all

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relevant times Plaintiff’s cell phone was used to electronically send over plaintiff’s cell

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phone network various types of private data. This data was not readily accessible to

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the general public.

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monitoring and collecting this data, nor did Plaintiff give them permission to do so.

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27.

Plaintiff did not know that Defendants were surreptitiously

Defendants intercepted, recorded and collected information concerning

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the substance, purport, or meaning of the electronic communications transmitted

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without the authorization of the parties to those communications.

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28.

During all times relevant herein, Plaintiff used and maintained a cellular

phone on the Sprint wireless network.
29.

Plaintiff and Class Members, as defined below, were unaware of

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Defendant’s wrongful conduct, and unable to discover it until December 2011, as

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Defendants conduct by nature was secret and concealed.

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CLASS ACTION ALLEGATIONS
30.

This action is brought as a class action by Plaintiffs on behalf of

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themselves and on behalf of all those similarly situated pursuant to Rule 23(a) and

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23(b)(1), (2), and (3) of the Federal Rules of Civil Procedure. The proposed class is

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defined as follows:

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All United States residents who operate a cellular phone
device manufactured by HTC, Inc. and/or HTC America,
Inc. and from which Carrier IQ, Inc. collected electronic
communications. (the “Class” or “Class Members”).

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Specifically excluded from the class are: any Judge
conducting proceedings in this action and their parents,
spouses and children as well as any other member of their
family residing in the judge’s household; counsel of record
in this action; the legal representatives, heirs, successors
and assigns of any excluded person.

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31.

The exact number of the members of the class (or sub-classes) is not

presently known, but is so numerous that joinder of individual members in this action
is impracticable. The exact number of the members of the class (or sub-classes) can
only be ascertained through discovery, because such information is in the exclusive
control of Defendant. However, based on the nature of the activities alleged herein,
Plaintiffs believe that the members of the class (or sub-classes) number the millions
and are geographically dispersed throughout the United States. The addresses of the

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members of the class (or sub-classes) are readily obtainable from the Defendants and

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their agents and on information and belief are maintained in the computer database of

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Defendants and are easily retrievable.

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32.

Plaintiffs will fairly and adequately protect the interests of the class (or

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sub-classes) and have retained counsel that are experienced and capable in class action

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litigation. Plaintiffs understand and appreciate their duties to the class (or sub-classes)

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under Fed. R. Civ. P. 23 and are committed to vigorously protecting the rights of

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absent members of the class (or sub-classes).

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33.

Plaintiffs are asserting claims that are typical of the claims of each

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member of the class (or sub-classes) they seek to represent, in that the claims of all

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members of the class (or sub-classes), including Plaintiffs, depend upon a showing that

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the Defendants violated federal law. All claims alleged on behalf of the class (or sub-

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classes) flow from this conduct as well. Further, there is no conflict between any

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Plaintiff and other members of the class (or sub-classes) with respect to this action.

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33.

There is a well-defined community of interest in the questions of law and

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fact involved affecting the parties to be represented. Questions of law and fact arising

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out of Defendants’ conduct are common to all members of the class (or sub-classes),

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and such common issues of law and act predominate over any questions affecting only

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individual members of the class (or sub-classes).

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34.
following:

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Common issues of law and fact include, but are not limited to, the
a.

Whether the data collected from Plaintiffs’ cellular phone devices
are electronic communications protected by the Federal Wiretap
Act.;

b.

Whether Defendants’ interception of data collected from
Plaintiffs’ devices was intentional within the meaning of the
Federal Wiretap Act;

c.

The proper measure of damages under the Federal Wiretap Act;

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35.

The relief sought is common to the entirety of the class (or sub-classes).

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36.

Defendants have acted on grounds generally applicable to the class (or

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sub-classes), thereby making final injunctive relief or corresponding injunctive relief

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appropriate with respect to the class (or sub-classes) as a whole.

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37.

This action is properly maintained as a class action in that the prosecution

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of separate actions by individual members would create a risk of adjudication with

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respect to individual members which would establish incompatible standards of

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conduct for the Defendants.

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38.

This action is properly maintained as a class action in that the prosecution

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of separate actions by individual members of the class (or sub-classes) would create a

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risk of adjudications with respect to individual members of each class (or sub-classes)

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which would, as a practical matter, be dispositive of the interests of the other members

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not parties to the adjudication, or would substantially impair or impede their ability to

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protect their interests.

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39.

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

efficient adjudication of the claims asserted herein given that, among other things:
(i)

significant economies of time, effort, and expense will
inure to the benefit of the Court and the parties in litigating
the common issues on a class-wide instead of a repetitive
individual basis.

(ii)

the size of the individual damage claims of most members
of the class (or sub-classes) is too small to make individual
litigation an economically viable alternative, such that few
members of the class (or sub-classes) have any interest in
individually controlling the prosecution of a separate
action;

(iii)

without the representation provided by Plaintiffs herein,
few, if any, members of the class (or sub-classes) will
receive legal representation or redress for their injuries;

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(iv)
(v)

despite the relatively small size of the claims of many
individual members of the class (or sub-classes), their
aggregate volume coupled with the economies of scale
inherent in litigating similar claims on a common basis,
will enable this case to be litigated as a class action on a
cost effective basis, especially when compared with
respective individual litigation;

(vi)

no unusual difficulties are likely to be encountered in the
management of this class action;

(vii)

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class treatment is required for optimal deterrence;

plaintiffs and members of the class (or sub-classes) have all
suffered irreparable harm and damages as a result of
Defendants’ unlawful and wrongful conduct;

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40.

Concentrating this litigation in one forum would aid judicial economy

and efficiency, promote parity among the claims of the individual members of the class
(or sub-classes), and result in judicial consistency.

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COUNT I
41.

Plaintiffs incorporate the allegations contained in Paragraphs 1 through

33 as if fully set out herein.
42.

The Omnibus Crime Control and Safe Streets Act of 1968, also known as

the Federal Wiretap Act, 18 U.S.C. § 2510 et seq., provides:
[A]ny person who-- … intentionally intercepts, endeavors
to intercept, … any wire, oral, or electronic
communication; … shall be punished as provided in
subsection (4) or shall be subject to suit as provided in
subsection (5).

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18 U.S.C.A. § 2511.

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43.

At all times relevant hereto, Plaintiffs, and Class Members were persons

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entitled to the protection of 18 U.S.C. § 2511 as they were individuals who were party

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to electronic communications.

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On information and belief, Defendants intercepted information

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concerning the substance, purport, or meaning of Plaintiffs’ electronic communications

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on more than one occasion.

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45.

The Federal Wiretap Act also provides that:
[A]ny person whose wire, oral, or electronic
communication is intercepted, disclosed, or intentionally
used in violation of this chapter may in a civil action
recover from the person or entity … which engaged in that
violation such relief as may be appropriate.
In an action under this section, appropriate relief includes -… (2) damages under subsection (c) and punitive damages
in appropriate cases; and (3) a reasonable attorney’s fee and
other litigation costs reasonably incurred … [T]he court
may assess as damages whichever is the greater of – (A) the
sum of the actual damages suffered by the plaintiff and any
profits made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a
day for each violation or $10,000.

18 U.S.C. § 2520
WHEREFORE, Plaintiffs and the Class pray that the Court enter judgment in
their favor and against Defendants as follows:
a.

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Ordering that this action be maintained as a class action pursuant
to Rule 23 of the Federal Rules of Civil Procedure, and

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b.

Declaring

that

Defendant’s

collection

communications violates 18 U.S.C. §2511; and

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of

electronic

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c.

Awarding Plaintiffs and Class Members statutory damages

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pursuant to 18 U.S.C. § 2520, including punitive damages, costs

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of suit, and attorneys’ fees; and

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d.

Injunctive and declaratory relief as deemed appropriate.

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COUNT II
1.

Plaintiff incorporates by reference and re-alleges paragraphs 1-45 as if set

forth fully herein.
2.

That Defendants’ actions were in violation of the Arizona state wiretap

statute (A.R.S. Sec 12-731).
3.

The Arizona statute provides a remedy in addition to the Federal statute

and is not pre-empted by the Federal statute.

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WHEREFORE, Plaintiffs and the Class pray that the Court enter judgment in
their favor and against Defendants as follows:
a.

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Ordering that this action be maintained as a class action pursuant
to Rule 23 of the Federal Rules of Civil Procedure, and

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b.

that

Defendant’s

collection

of

c.

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Awarding Plaintiffs and Class Members statutory damages
pursuant to A.R.S. Sec 12-731, including punitive damages, costs

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of suit, and attorneys’ fees; and

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electronic

communications violates A.R.S. Sec 12-731; and

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Declaring

d.

Injunctive and declaratory relief as deemed appropriate.

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DATED this 7th day of December, 2011.

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By:

/s/Burt Rosenblatt, Esq.
Burt Rosenblatt, Esq., AZ Bar No. 014023
ELY, BETTINI, ULMAN & ROSENBLATT
3200 N. Central Ave., Ste. 1930
Phoenix, AZ 85012
Phone:[phone]
[e-mail]
In Association with:

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Eric D. Holland, Esq.
Steven J. Stolze, Esq.
Steven L. Groves, Esq.
HOLLAND, GROVES, SCHNELLER
& STOLZE, LLC
300 N. Tucker, Suite 801
St. Louis, MO 63101
Phone:[phone]
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff

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