Campbell v. Facebook, Inc. et al

Filing 1

COMPLAINT with Jury Demand against Facebook, Inc. and Does 1 Through 10, ( Filing fee $ 350 receipt number 2008749), filed by Stephanie Campbell.(tg)

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IN THE UNITED STATESDISTRICT COURT FoR wEsrERN rHB DrsrRrcr ARKA*r,$ftyfrHl?HLf,^._?.Hf, oF 'rD,"rDr\.t\ FAYETTEVILLEDIVISION F'ACI]T]OOK, INC Serve at: 1601 CaliforniaAve. S. PaloAlto, CA 94304 ffi:d#"r*{*As. F:SV| rutl ? STEPHANIE CAMPBELL PLAINTIFF lndividually and on Behalf of All OthersSimilarly Situated, Plaintiffs. ' R. ,cgys roHlvsoN,# DeputyOerk caseNo: S ^bb /l- JURY TRIAL DEMANDEI} DOESI THROUGH10, Defbndants. CLASSACTION COMPLAINT Plaintiff,on behalfof herself all others and similarlysituated, alleges avers follows: and as INTRODUCTION L This class action arises out of improper and unlawful actions by the Defendantswho participatedin a schemeto intercept,endeavorto intercept,or procure the PlaintifTand the Classmembers'personalinformationas prohibited by law. 2. Plaintiff and the Classmembersare individuals who subscribe the online social media to siteFacebook. a J - Facebook maintains personal information pertaining to each individual as well as monitorsthe individual online habitsof its userskeepingtrack of websites they visit. 4. Upon obtaining personal information and/or wire or electronic communicationsof the Plaintiff, Facebook conspired to use said information for target marketing which pertainedto the Plaintiff and the individual Classmembers, over the Internet. 5. Such conductwas committed in violation of 'l'itle III of the Omnibus Crime Control and Safe StreetsAct of 1968 as amendedby the Electronic CommunicationPrivacy Act of 1986,l8 U.S.C.$ 251l, et seq.(the"Wiretap Act"). PARTIES Plaintiffs 6. Plaintiff Stephanie Campbell is an individual who resides at 73 Woodridge Road, Rogers, Benton County, AR 72756. Upon information and belief, Defendants intercepted, collectedand storedpersonalinformationfrom Plaintiffl Defendants 7. Def'endantis a company organized and existing under the laws of Delaware with is principal placeof business 1601S. California Ave. Palo Alto, California. 94304. Upon at infbrmation and belief, Facebook, Inc. owns and/or operates websites including, which offer online social interactionand picture storage. 8. Defendants Doe 1 through l0 are the remaining directors, employees, agents, or contractors Facebookthat are yet to be namedand whose identity will becomeknown of through discovery and/or by requestsmade by PlaintifT or the membersof the plaintiff class,afler which suchremaininedefendants will be addedas individual defendants. JURISDICTION AND VENUE 9. This Court hasjurisdiction over this action and all the defendants pursuantto 28 U.S.C. {i l33l in that this action arisesurder statutesof the United States,specifically violations of the "Wiretap Act". 2 10. jurisdiction over DefcndantFacebook, Additionally, this Court has personal Inc. pursuant to the Arkansaslong-arm statute,A.C.A. $ 16-4-101,since Facebook,Inc. transacted business and made, contracts in Arkansas directly through website the violated the law within the stateof Arkansas,and otherwischas sufficient minimum contactswith the state of Arkansas as more particularly described below. Il. DefendantFacebook,Inc. has sufficient minimum contactssuch that the maintenance of justice. Facebook this suit doesnot offend traditionalnotions of fair play and substantial has voluntarily submitteditself to the jurisdiction of this Court and jurisdiction is proper because, amongother things: a. Facebook, Inc. directly and purposefully obtained, misappropriatedand used personal information and/or information relating to wire or electronic communicationsof individuals living in Arkansas,including the Plaintiff and the individual Classmembers; b. Facebook, Inc. committed tortuous acts within this state by misappropriating personal information and/or wire or electronic communicationsof citizens of Arkansas violatingthe WiretapAct and42 U.S.C.g 1983; and otherwise c. Plaintiff s and the Classmembers'causes action directly arisefrom of Facebook'scommissionof tortious and unlawful actsin Arkansas: d. PlaintifFs and the Classmembers'causes action directly arisefrom of Facebook'stransaction business Arkansas; of in Facebook, Inc. shouldreasonably anticipatebeing haledinto court in Arkansas to answer for its unlawful acts. Arkansas has a strong interest in providing a fbrum for its residents aggrievedby violationsof the law. T2, Venue is proper in this District pursuant 28 U.S.C. $ l39l(c) because substantial to a amount of the acts and omissions giving rise to this cause o1-action occurred in the Westernl)istrict of Arkansas. GENERAL ALLEGATIONS 13. DefendantFacebook,Inc. operatesa website,, which is primarily a socialnetworking site. 14. In conductingits business, Facebook,Inc. aggregates data on individual membersof the public and usesthat information in furtherance marketingand advertising. of 15. Facebook tracks, collects and stores wire or electronic communicationsof its users, including but not limited to their Internetbrowsing history. t6. Leadingup to September 201l, Facebook 23, tracked,collected and storedits users'wire or electronic communications,including but not limited to portions of their Internet browsinghistory even when the userswere not logged-into Facebook. t7. Plaintiff did not give consentor otherwiseauthorizeFacebookto intercept,track, collect and storeher wire or electroniccom[runications,including but not limited to her Internet browsinghistory when not logged-into Facebook. 18. The electronicinformation procuredby Facebook,Inc. while Plaintiff was not logged-in to Facebookcontainedpersonalinformation and/or wire or electroniccommunications of the Plaintiff. 19. At all times material, Defendant knew, or reasonablyshould have known, that their actions violated clearly established statutory rights of the Plaintiff and the Class members. CLASS ACTION ALLEGATIONS 20. This action is properly brought as a plaintilf class action pursuantto Fed. R. Civ. P. 23(bX3). Plaintiff brings this action on her own behalf and all others similarly situated, as representative the following classand subclass: of All individuals in the United Stateswho subscribe Facebookand whose to electronic internet information was interceptedby Facebook when the individualswere not logged-into Facebook. Excluded from the Class are (l) any individual defbndantwho opts out of the class;(2) any memberof the immediatef'amily of any individual defendant; and/or (3) any member of the r-urdersigned attorney'simmediatefamilies. 2r. The particular members of the Class are capable of being describedwithout difficult managerial administrative or problems. The membersof the Classare readily identifiable from the infbrmationand recordsin the possession control of the defendants. or 22. 'l'he Classmembersare so numerous that individualjoinder of all membersis impractical. This allegation is based upon information and belief that Defendant interceptedthe personalinformation of millions of Facebookusers of which there are more than 150 million in the United States. LJ, There are questionsof law and fact common to the Class,which questionspredominate over any questions affecting only individual members of the Class, and, in fact, the wrongs sufferedand remediessoughtby Plaintiff and the other membersof the Classare premised upon an unlawful schemeparticipated in by all defendants, 'fhe principal common issuesinclude,but are certainlynot limited to the following: a. The natureand extentof the Defendant'sparticipationin interceptingthe and/orwire or electroniccommunications classmembers; of b. Whetheror not the interceptionof wire or electroniccommunications was intentional; c. Whetheror not Defendantshouldbe enjoinedfrom interceptingany wire or without the consentof its users; electroniccommunications d. Whetherthe actionstaken by Defendantin interceptingthe wire or electronic of communications classmembers violate the Wiretap Act; e. J'he nature and extent to which the wire or electroniccommunicationsof Class memberswas unlawfully intercepted, tracked,storedor used; f. The nature and extent to which Def'endantswere unjustly enriched by their actions; g. The nature and extent to which Defendantsintruded upon the seclusionof Class members h. The nature and extent to which Defendants committed a trespass to Class members'personalpropefty i. The natureand extentof the Classmembersactualdamages; j. The nature and extcnt of all statutory penalties or damages for which the are Defendant liable to the Classmembers;and k. 24. Whetherpunitive damages appropriate. are PlaintifT's claims are typical of those of the Class and are basedon the same legal and lactual theories. 25. Plaintiff will lairly and adequately representand protect the interestsof the Class. She has suffered injruy in her own capacity from the practicescomplainedof and is ready, willing and able to serve as class representative. Moreover, PlaintifTs counsel is 6 experienced in handling class actions and actions involving unlawful commercial practices. Neither Plaintiff nor her corursel has any interestthat might causethem not to vigorously pursuethis action. 26. of Certif,rcation a plaintiff class under Fed. R. Civ. P. 23(bX3) is appropriatein that Plaintiff and the Classmembersseekmonetarydamages, predominate common questions over any individual questions,and a plaintiff class action is superior fbr the lair and efficient adjudicationof this controversy. A plaintiff class action will causean orderly and expeditiousadministrationof the Class members' claims and economiesof time, effort and expense will be fostered and uniformity of decisions will be ensured. Moreover,the individual classmembersare unlikely to be awareof their rights and not in a position (either through experienceor financially) to commenceindividual litigation againstthe likes of the defendants. 27. Alternatively, certificationof a plaintiff classunder Fed. R. Civ. P. ?3(bXl) is appropriate in that inconsistent or varying adjudications with respect to individual members of the Class would establish incompatible standards of conduct fbr the defbndants adjudications or with respect individual membersof the Classas a practical to matter would be dispositive of the interestsof the other members not parties to the adjudications or would substantially impair or impede their ability to protect their interests. COUNT I (Violation of the Wiretap Act) 28. Plaintiff incorporates precedingparagraphs though fully set forth herein. all as 29. As described herein, Facebook, Inc. intentionally intercepted and collected wire or electroniccommunications from its users. 30. Inc. interceptedand collected information from its users without At times, h'acebook, their consentwhile the userswere not logged-into Facebook. 31. The transmission of data between Plaintiffs computer and the Internet constitute "electronic communication" within the meaning l8 U.S.C.$ 2510(12). of 32. Facebook'sdata collection practicesas described herein constitute"interceptions"within the meaning $ 2510(4). of JJ. As a direct and proximateresult of suchunlawful conduct,Defbndantviolated l8 U.S.C" $ 251I in that the Defbndants: a. Intentionally intercepted, endeavored intercept,or procuredanotherperson to to interceptwire and/orelectroniccommuricationsof the Plaintiff; b . Upon belief predicated upon fuither discovery, intentionally disclosed or endeavored discloseto anotherpersoil the contentsof Plaintitl's wire or to electronic communications, knowing or having reason to know that the information was obtained through the interception of wire or electronic communications violationof l8 U.S.C.g25l l(l)(a). in Upon belief predicated upon further discovery, intentionally used or endeavored to use the contents of Plaintiff s wire or electronic communications,knowing or having reason to know that the information through the interceptionof wire or electroniccommrurications violation of in . 1 8u . S . C9 2 5 1 1 ( l X a ) . 34. FacebookInc.'s actions describedin tl33 occurredwithout the consentof Plaintiff and violated FacebookInc's own Privacy Policy per the following promisesit madeto users: a. "We receivedatawheneveryou visit that usesFacebook Platform or visit a site with a F-acebook feature....This mav includethe dateand time you visit the site; the web address, URL, you'reon; or informationaboutthe IP address, technical browserand the operating your User ID." systemyou use; and,if you are logged in to Facebook, FacebookData UsePolicy, availableat use policy as of October4,201I and lastupdated September 2011. 23, b. "Does Facebook usecookiesifI don't have an accountor have loggedout of my account?When you log out of Fasebook, removethe cookies we that identify your particularaccount,but we do use other cookiesprimarily to help keepyou and otherson Facebooksafeand secure. For example,we use cookiesto identify and disablethe accounts spammers of and phishers, to prevent people who are underagefrom signing up with a false birth date,to help you recoveryour accountif you lose access it or it's to to compromised, power our opt-in securityf'eatures like Login Notifications and Login Approvals,and to help identify public computers so that we can discourage peoplefrom using "Keep me logged in." We may alsouse anonymizedor aggregate informationto improve our products.We also usecookiesif you don't have a Facebookaccount,but have visited Again, thesecookieshelp us protectFacebook and the peoplewho use it from maliciousactivity. For example,they help us detectand preventdenial-of'-service attacksand the masscreationof fake accounts. We do not usethesecookiesto createa profile of your browsingbehavioron third-party sites.FacebookFrequentlyAsked stions,availableat permalink: Que I 3#DoesFacebook-use-cookies-i1--I'don't-have-an-account-or-have-loqged-out-ofmv-accqwtt? October4,2011; and on "What information doesFacehook receivewhen I visit a site with the Like button or anothersocialplugin?.....If you're logged out or don't have a Facebookaccountand visit a websitewith the Like button or another social plugin, yow browsersendsus a more limited set of information.For you're not loggedin to Fagebook, don't receiveyour example,because we user ID." FacehookFrequentlyAsked Questions, availableat permalink: https://www.facebook.comArelp/?faq:293 I 23997323#What506 information-does-Facebook-receive-when-I-visit-a-site-with-the-Likebutton-or-another-social-plugin? October4, 20I1. on 35. Facebook Inc.'s actions describedin 1133 occurred without the consent of Facebookaffiliated websites,including, for example,the websitesfor the New York Times and WashingtonPostnewspapers, that: in a. The interception and collection of infbrmation describedin this paragraph caused New York Times to violate its own Privacy Policy for its websites, the including, which infbrms readers : "If you have registered online for one of our sites,The New York will not sell, rent, swapor authorizeany third party to useyour fimes e-mail address without your permission.This also appliesto any rnformationthat personallyidentifiesyou, exceptas noted immediatelvbelow:" and " will not sharepersonalinformationaboutyou as an rndividualto third partieswithout your consent." y-hiehliehts.html b. The interceptionand collection of information describedin this paragraph causedthe WashingtonPostto violate its own Privacy Policy for its websites, including www. washingtonpost. com, which informs readers : Do other companiesor peoplehave access personallyidentifiable to information I provide to When you are on an areaof are askedlbr and personallyidentifiableinformation,you areproviding that informationto The WashingtonPost Company,its divisionsor affiliates,or vendors providing contractual servicesfor (suchas hosting vendorsand list managers). personallyidentifiable infbrmationis being If providedto and"/or maintainedby any companyother than these,our policy is that we will not transferthat personallyidentifiableinformation unlessnotice is given prior to transfer.If you do not want your informationto be shared, you can choosenot to allow the transferby not usingthat particularserviceor by expressing this preference, ifrequested. 36. Regardlessof the consent alleged by F-acebook, Inc. from Plaintiff or the Facebookaffiliated websites,such consentwas not valid because FacebookInc.'s actionsdescribed herein were fbr the purposeof committing tortuous acts in violation of the laws of the l0 United States or of any State. In taking its actions, Facebook, Inc. committed the following tortious actsallegedin this petition: a. Unjust enrichment b. Intrusionupon plaintiff s seclusion; c. Trespass personalproperty; to Jt. As a result of the aboveviolations and pursuantto 18 U.S.C. $ 2520, Defendantis liable to Plaintiff and the Class in the sum of statutorydamagesconsistingof the greaterof $100 for each day each of the class members' data was wrongfully obtained or $10,000.00 per violation; iniunctive and declaratory relief; punitive damages in an amount to be determinedby a jury, but sufficient to preventthe sameor similar conduct by Facebook in the firture, and a reasonableattorney's f'ee and other litigation costs reasonable. COUNT III (Unjust cnrichment) 37. PlaintifTincorporates preceding paragraphs though fully set forth herein. all as 38. Plaintiff conferreda benefit on Defendantwithout Plaintiff s consent" namelv access ro her wire or electroniccommunications over the lnternet. 39. Llpon information and belief, Defendant realizedsuchbenefitsthrough either salesto third-partiesor greaterknowledgeof its own users'behaviorwithout their consent. 40. Acceptance and retentionof suchbenefit without Plaintiff s consentis unjust and inequitable. COUNT IV (Intrusion upon seclusion) 41. Plaintitf incorporatesall precedingparagraphsas though fully set forth herein, ll 42. In interceptingPlaintiff s wire and electroniccommunications the Internet, on Defendants intentionallyintrudedupon her solitudeor seclusion. 43. Plaintiff did not consentto Defendant'sintrusion. 44. Defendant'sintentionalintrusion on Plaintiff s solitudeor seclusionwithout her consent would be highly offensiveto a reasonable person. COUNT V (Trespassto Personal Property) 45. Plaintiff incorporates precedingparagraphs though set lbrth herein. all as 46. Def'endant, intentionallyand without consentor other legaljustification, tracked Plaintiff s activity while the Plaintiff was logged-offof the, and, in the proccss, Plaintiff s personallyidentifiableinfbrmationto her specific connected actionson the Internet. 47. Defendant,intentionallyand without consentor other legaljustification, placedcookies on Plaintiffs computerswhich trackedher activity while logged-offof Facebook. 48. Def-endant's intentionaland unjustitiedplacing of a cookie designed track Plaintiff s to Internetactivitieswhile logged-offof Facebookand actualtracking of Plaintiff s activitiesinterferedwith Plaintiff s use of the following personalpropertyowned by the PlaintifT': a. PlaintifT'scomputer;and b. Plaintiff.s personallyidentifiableinfbrmation PRAYERFOR DAMAGES WHEREFORE, Plaintiff,on bchalfof herselfand all members the Classrespectfully o1 prays for judgment against defendants follows: the as a) For an order certifying that this action may be maintainedas a classaction under Fed. R. l2 Civ. P. 23(bX3) or, in the alternative,Fed. R. Civ. P. 23(bxl) and appointing Plaintiff notice of this action and her corursel, represent Classand directing that reasonable the to be given to all other membersof the Classas necessary appropriate; and b) I'or a declaration the Defendants' that actions violatedthe l8 U.S.C.2511et seq,; c) For a declarationthat the Defendants,through their actions and misconductas alleged above, have been unjustly enriched and an order that Defendantsdisgorge such unlawful gainsand proceeds; d) For a declarationthat the Def'endants, through their actions and misconductas alleged above, have intruded upon Class members' seclusionand an order assessing damages againstDefendants suchviolations; for d) For a declarationthat the Defendants,through their actions and misconductas alleged above, have committed trespassupon the personal property of Plaintiff and an order assessing damagesagainstthe Defendantsfor violations of Plaintiff s personalproperty rights; r) For all actual damages,statutory damages,penalties, and remedies available lbr the defbndants' violations 18 U.S.C. 251I et seq.; of g) That judgment be enteredagainstDefendantfor statutorydamages pursuantto l8 U.S.C. $2520(cX2XB); h) That judgment be enteredagainstDefendantfor statutorydamages pursuantto 18 U.S.C. $2s20(b)(2); i) That Plaintiff and the Classrecoverpre-judgmentand post-judgment interestas permitted by law; i) For an award to Plaintiff and the Class of their reasorrable attorneys' fees and other I3 litigationcostsreasonably incurredpursuant 18 U.S.C.$2520(bX3); to k) That the court enter an order granting Plaintiff and the Class a preliminary and permanent injunction restraining and enjoining Defendant from any act to intercept electronic infarmation from its users when they are not logged in and from disclosing any of the infbrmationalreadyacquiredon its servers; r) That the Court grant such other and fuither relief as may be just and proper; JURY DEMAND Plaintiff demands that all issuesso triable in this Complaintbe tried to a jury. Datcdthis lSth day of November, 2011. DAVIS & ASSOCIATBS. P.A. BrianCampbell, Bar#2007069 Ar. Street 1?0Commercial P.O.Drawer 5 Springdale, AR72765 Tclephone: (479)751-33I 4 Fax:(479)751-2183 L4

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