In Re Quantcast Advertising Cookie Litigation

Filing 44

NOTICE of Manual Filing filed by Plaintiffs Alan Bonebrake, Byron Griffith, Mary Huebner, Jose Marquez, Austin Muhs, Brittany Sanchez, Edward Valdez, Gerardo Valdez, Kayla Valdez of First Amended and Consolidated Complaint. (Attachments: #1 Exhibit Notice of Lodging First Amended and Consolidated Complaint)(Parisi, David)

Edward Valdez et al v. Quantcast Corporation et al

Doc. 44 Att. 1

Dockets.Justia.com

1 Scott A. Kamber (pro hac vice) [e-mail] 2 David A. Stampley (pro hac vice) 3 [e-mail] KamberLaw, LLC 4 100 Wall Street, 23rd Floor New York, New York 10005 5 Telephone: [phone] Facsimile: [phone] 6 Interim Class Counsel 7 David Parisi (SBN 162248) 8 [e-mail] Suzanne Havens Beckman (SBN 188814) 9 [e-mail] Parisi & Havens LLP 10 15233 Valleyheart Drive 11 Sherman Oaks, California 91403 Telephone: [phone] Additional counsel listed on signature page 13 IN THE UNITED STATES DISTRICT COURT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
First Amended and Consolidated Complaint

CENTRAL DISTRICT OF CALIFORNIA IN RE QUANTCAST ADVERTISING COOKIE LITIGATION CASE NO. 2:10-cv-05484-GW-JCG JURY DEMAND FIRST AMENDED AND CONSOLIDATED CLASS ACTION COMPLAINT FOR: 1. Violation of Computer Fraud and Abuse Act, 18 U.S.C. §1030; 2. Violation of Computer Crime Law, Cal. Penal Code §502; 3. Violation of Invasion Of Privacy Act, Cal. Penal Code §630; 4. Violation of Consumer Legal Remedies Act, Cal. Civ. Code §1750; 5. Violation of Unfair Competition Law, Cal. Bus. and Prof. Code §17200; 6. Trespass to Personal Property/Chattel 7. Unjust Enrichment 1

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CLASS ACTION COMPLAINT Plaintiffs, Jennifer Aguirre; Alan Bonebrake; Alejandro Godoy; Byron

3 Griffith; Mary Huebner; Jose Marquez; Austin Muhs; Brittany Sanchez; Edward 4 Valdez; Gerardo Valdez ; and Kayla Valdez ("Plaintiffs"), on behalf of 5 themselves and all other similarly situated individuals (each a "Class Member" of 6 the putative "Class," as further described herein), by and through their attorneys, 7 as and for their complaint and demanding trial by jury, allege as follows based on 8 their personal knowledge as to themselves and their own acts and observations 9 and, otherwise, upon information and belief based on the investigation of counsel, 10 which Plaintiffs believes further investigation and discovery will support with 11 substantial evidence. 12 13 1. I. NATURE OF THE CASE Plaintiffs and Class Members are consumers in the United States

14 who use their desktop and laptop computers to access websites on the Internet, 15 and including users who configured their web browser privacy settings to deny 16 permission for third parties to set browser cookies on their computers. 17 2. Quantcast Corporation ("Quantcast") is an Internet audience metrics 18 company. Together, Quantcast and the online content-providers that deployed 19 Quantcast's technologies, MySpace, Inc., American Broadcasting Companies, 20 Inc., ESPN, Inc., Hulu, LLC, JibJab Media, Inc., MTV Networks, Inc., NBC Uni21 versal Inc., and Scribd ("Publishers") (collectively, the "Defendants") gained ac22 cess to the computers of millions of consumers' to plant cookie-like tracking code 23 on users' computers. With this tracking code, Defendants circumvented users' 24 browser controls for managing web privacy and security. 25 3. Defendants engaged in these practices so they could monitor users, 26 avail themselves of information about users' web-browing activities, and continue 27 doing so for as long as Defendants' liked without being subject to users' browser 28 privacy and security settings and cookie management utilities that limit the abiliFirst Amended and Consolidated Complaint

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1 ties of third parties to set and read browser cookies. 2 4. The user information Defendants misappropriated and merged with 3 information from Quantcast's web affiliations and data sources, included details 4 about users' personal characteristics such as gender, age, race, number of chil5 dren, education level, geographic location, and household income. Defendants 6 used the resulting profiles to identify individual users and track them on an ongo7 ing basis, across numerous websites, even spotting and tracking users when they 8 accessed the web from different computers, at home and at work. 9 10 12 5. 6. 11 to 28 U.S.C. § 1331. Venue is proper in this District under 28 U.S.C. § 1391(b) because 13 defendants MySpace, Inc. and JibJab maintain principal executive offices and 14 headquarters in Los Angeles County, California, and in this District. 15 7. Venue is also proper in this District under 28 U.S.C. § 1391(b) be16 cause Defendants' improper conduct alleged in this complaint occurred in, was 17 directed from, and/or emanated from this judicial district. 18 19 21 8. 9. 20 States. Defendant Quantcast Corporation ("Quantcast') is a Delaware corpo22 ration with headquarters at 201 Third Street, Second Floor, San Francisco, Cali23 fornia 94103. Quantcast does business throughout the United States and, in par24 ticular, in the State of California and Los Angeles County. 25 10. Defendant MySpace, Inc. is a Delaware corporation that maintains 26 its headquarters at 407 N. Maple Drive, Beverly Hills, CA 90210. Defendant 27 MySpace is a subsidiary of News Corporation and does business throughout the 28 United States, and in particular, does business in the State of California and in this
First Amended and Consolidated Complaint

II. JURISDICTION AND VENUE This Court has subject-matter jurisdiction over this action pursuant

III. PARTIES Plaintiffs are individuals residing in various locations in the United

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1 judicial district. 2 11. Defendant American Broadcasting Companies, Inc. is a Delaware 3 corporation that maintains its headquarters at 47 W. 66th Street, New York, NY 4 10023. Defendant American Broadcasting Companies, Inc. is a subsidiary of The 5 Walt Disney Company and does business throughout the United States, and in 6 particular, does business in the State of California and in this judicial district. 7 12. Defendant ESPN, Inc. is a Delaware corporation that maintains its 8 headquarters at 935 Middle Street, Bristol, CT 06010. Defendant ESPN is a sub9 sidiary of The Walt Disney Company and does business throughout the United 10 States, and in particular, does business in the State of California and in this judi11 cial district. 12 13. Defendant Hulu, LLC ("Hulu") is a Delaware corporation with 13 headquarters at 12312 West Olympic Boulevard, Los Angeles, California 90064. 14 Hulu does business throughout the United States and, in particular, in the State of 15 California and County of Los Angeles. 16 14. Defendant JibJab Media, Inc. is a Delaware corporation that main17 tains its headquarters at 228 Main Street, Suite 4, Venice, CA 90291. JibJab Me18 dia, Inc. does business throughout the United States, and in particular, does busi19 ness in the State of California and in this judicial district. 20 15. Defendant MTV Networks, Inc. is a Delaware corporation that main21 tains its headquarters at 1515 Broadway, New York, NY 10036. MTV Networks, 22 Inc. is a subsidiary of Viacom, Inc. and does business throughout the United 23 States, and in particular, does business in the State of California and in this judi24 cial district. 25 16. Defendant NBC Universal, Inc. is a Delaware corporation that main26 tains its headquarters at 30 Rockefeller Plaza, New York, NY 10112. NBC Uni27 versal, Inc. does business throughout the United States, and in particular, does 28 business in the State of California and in this judicial district.
First Amended and Consolidated Complaint

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17.

Defendant Scribd, Inc. is a Delaware corporation that maintains its

2 headquarters at 539 Bryant Street, San Francisco, CA 94107. Scribd, Inc. does 3 business throughout the United States, and in particular, does business in the State 4 of California and in this judicial district. 5 6 A. 7 Background 18. In 1994, in the first web browser1 to allow for the exchange of cookIV. STATEMENT OF FACTS

8 ie values2 between a web server and user's computer, the browser, by default, ac9 cepted first-party websites'3 cookies and rejected third-party cookies. "HTTP 10 Cookies: Standards, Privacy, and Politics," David M. Kristol, 2001, available at 11 http://arxiv.org/abs/cs/0105018 (last accessed June 22, 2010) at 9-10. Third-party 12 cookie transactions were considered "unverifiable transactions" and a threat to 13 users' privacy and security; users had no way of knowing in advance whether 14 third parties might be setting cookies on their computers, for what reason, and 15 who the third parties were. The default configuration--rejection of third-party 16 17 18 19 20 21 22 23 24
A browser is software installed on a user's personal computer . . . and with which the user, by communicating through an electronic network such as the Internet, can access Web sites. In the Matter of Netscape Communications Corporation, Assurance of Discontinuance, Attorney General of the State of New York (June 13, 2003). A cookie is a small string of text transmitted to and from a user's computer in a communication between a server group and a particular instance of browser client software. For ease of reference in this complaint, this exchange is characterized a communication between a website and a user, or user's browser "First-party Web site" is the Web site a User affirmatively requests to visit, for example, by typing in the site's URL or by clicking on a hyperlink to the site. In the Matter of DoubleClick Inc.: Agreement Between the Attys. Gen. of the States of
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25 Arizona, California, Connecticut, Massachusetts, Michigan, New Jersey, New Mexico, New 26 York, Vermont, and Washington and DoubleClick Inc., Aug. 26, 2002 at 2, available at 27 2010). 28
First Amended and Consolidated Complaint

http://www.ag.ny.gov/media_center/2002/aug/aug26a_02_attach.pdf (last accessed July 29,

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1 cookies--was retained when, in 2000, the Internet Engineering Task Force (IETF) 2 finalized the global standard for web servers and browsers to follow in exchang3 ing cookies. See "RFC 2965, HTTP State Management Mechanism" [Kristol and 4 Montulli 2000], Internet Engineering Task Force, Oct. 7, 2000, available at 5 http://www.ietf.org/rfc/rfc2695.txt.pdf (last accessed July 27, 2010). 6 19. Nascent Internet advertising companies protested the standard. The 7 leading commercial browser vendors, Microsoft and Netscape, declined to im8 plement it. Kristol at 21.Thus, a de facto standard was propagated as browser 9 vendors engaged in mass distribution of their software: if a first-party website-- 10 the site the user expressly chose to visit--chose to display a web page that in11 cluded a third-party advertisement or use a third-party-provided traffic counter, 12 the third party gained the ability to set cookies on users' computers with no notice 13 to those users. 14 20. This development cleared the way for third-party advertising compa15 nies to engage in widespread "network advertising." By assembling a client net16 work of many websites, advertising companies could recognize, track, and profile 17 users activities across many websites. As early as 2001, DoubleClick was deliver18 ing ads on a network of over 11,000 websites. In re DoubleClick Inc. Privacy Lit19 igation, 154 F.Supp.2d 497, 500 (S.D.N.Y. 2001). By 2009, Google, which ac20 quired DoubleClick, was serving ads on a network of millions of websites. 21 Google Inc., SEC Form 10-K for period ending Dec. 31, 2009 at 9. In 2009, ad22 vertising accounted for 97 percent of Google's $24 billion revenue in 2009. Id. at 23 19. At the same time, it became more important to commercial entities to be able 24 to measure advertising activity and user traffic. 25 21. Meanwhile, browser vendors and other companies have distributed 26 software tools that offer users some measure of third-party cookie control. For 27 example, users can accept or refuse to accept all or certain third-party cookies or 28 to automatically delete them at intervals of users' choosing. These software
First Amended and Consolidated Complaint

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1 tools--like other software owned or licensed by users, such as Adobe Flash Play2 er--are under the authority and control of those users. 3 22. One reason users employ tools to manage and delete cookies is dis4 taste for being profiled. According to PreferenceCentral, an online ad preference 5 management provider, 58 percent of U.S. Internet users expressed willingness to 6 receive behaviorally targeted ads in exchange for free content. However, when 7 told how behavioral targeting works, the number of willing users dropped to be8 low 38 percent, and 50 percent of users stated they would elect to receive a more 9 limited selection of free content and untargeted advertisements. "Consumer Per10 spectives on Online Advertising 2010," PreferenceCentral, July 7, 2010, available 11 at http://www.preferencecentral.com/consumersurvey/results/behavioral12 targeting/ (last accessed July 28, 2010). 13 B. 14 Quantcast's Conduct 23. User control over third-party cookies has created challenges for ad-

15 vertisers and online ad networks, as well as Internet metrics companies such as 16 Quantcast, that attempt to track and profile users over time and/or across multiple 17 websites. For online companies that rely on cookies to track users and measure 18 user activity, cookie deletion skews the numbers. 19 24. Quantcast, however, identified a way to work with the websites and 20 content-providers deploying its technology to work around user preferences by 21 installing, on users' computers, a tracking device that users could not easily de22 tect, manage, or delete. In cooperation with websites, Quantcast planted its own 23 tracking code on users' computers--but not in a cookie. Quantcast and participat24 ing website owners and operators, including the Publishers, stored tracking code 25 as an Adobe Flash Media Player local shared object (LSO). Adobe Flash Media 26 Player is software that enables users to view video content on their computers. 27 Quantcast then merged the tracking results with information from other sources to 28 arrive at metrics for the site.
First Amended and Consolidated Complaint

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25.

Quantcast and the Publishers' use of this technology was inde-

2 pendently confirmed in a report issued by academic researchers and titled, "Flash 3 Cookies and Privacy," which found that: 4 6 8 a. b. c. A user visiting a Publisher site would receive a standard, If the user deleted the browser cookie, the Flash cookie would These operations happened without any notice to the user and 5 browser cookie, and an identical "Flash cookie." 7 be used to "re-spawn" the browser cookie. 9 without any consent from the user. 10 "Flash Cookies and Privacy," A. Soltani, S. Canty, Q. Mayo, L. Thomas, C.J. 11 Hoofnagle, Univ. Cal., Berkeley, Aug. 10, 2009 at 3, available at 12 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1446862 (last accessed July 13 28, 2010). 14 26. In a letter to the Federal Trade Commission earlier this year, Adobe 15 Systems Incorporated condemned the use of LSOs to back-up and re-spawn 16 browser cookies without express user consent. Letter to FTC, Adobe Systems 17 Inc., Jan. 27, 2010, available at http://www.ftc.gov/os/comments/privacy18 roundtable/544506-00085.pdf (last accessed July 27, 2010). 19 C. 20 21 Plaintiffs' Experiences 27. 28. During the Class Period, Plaintiffs visited Publisher websites. Subsequently, Plaintiffs examined the contents of the local storage

22 associated with the Adobe Flash Player application on their computers. They ob23 served that the objects in local storage included one object labeled with the do24 main of the Publisher, for example "player.hulu.com" and another labeled with 25 the domain for Quantcast, for example "www.hulu.com\com.quantserve.sol." It is 26 Plaintiffs' belief that one or more of these objects is a tracking device used by De27 fendants, without authorization, to monitor and profile their Internet activities. 28 29. Plaintiffs did not receive notice of the installation of these devices, 8

First Amended and Consolidated Complaint

1 did not consent to the installation of these devices, and did not want these devices 2 to be installed on their computers. 3 30. Plaintiffs believe that, if they were to visit these sites again, the 4 tracking devices would be used as substitute cookies or to re-spawn previously set 5 cookies. 6 31. Plaintiffs consider information about their online activities to be in 7 the nature of confidential, trade secret information that they protect from disclo8 sure, including by controlling their browser settings for acceptance or rejection of 9 cookies. 10 1 1 bers. 12 D. 13 User Consequences 33. Defendants manipulated their "Flash cookies" in storage areas of 32. Plaintiffs' experiences are typical of the experiences of Class Mem-

14 Plaintiffs' and Class Members' computers, which were computers used in and af15 fecting interstate commerce and communication and were therefore protected 16 computers as defined in the Computer Fraud and Abuse Act, Title 18, United 17 States Code, Section 1030(e)(2). 18 20 34. 35. Defendants' actions were surreptitious and without notice and so Defendants' conduct has caused economic loss to Plaintiffs and Class 19 were conducted without authorization and exceeding authorization. 21 Members in that, in a barter economy in which users' patronage (which is the sub22 ject of Quantcast's traffic measurement activities) is the currency with which us23 ers acquire ostensibly no-fee web services, their patronage has independent eco24 nomic value. 25 36. In addition, inasmuch as Defendants' wrongfully acquired Plaintiffs' 26 and Class Members' patronage, Plaintiffs and Class Members were deprived of 27 the opportunity to contribute their patronage to web entities that did not engage in 28 such wrongful conduct.
First Amended and Consolidated Complaint

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1 3

37. 38.

Plaintiffs and Class Members incurred the costs of repairing their Further, the information misappropriated by Defendants, the "Flash

2 computers to remediate the impaired operability caused by Defendants. 4 cookies" copied from Plaintiffs' and Class Members' browser cookies and popu5 lated with their actual user data constitute assets with discernable values. Certain6 ly given Defendants' conduct, Defendants associate economic value with the us7 ers' cookies. In addition, cookies even have specific valuations in criminal mar8 kets. For example, Symantec reported that, in 2007, the illicit market value of a 9 valid Hotmail or Yahoo cookie was three dollars, though other sources have re10 ported the prices have since dropped due to a current oversupply. 11 39. The aggregated loss and damage sustained by Subscribers set forth 12 above includes economic loss with an aggregated value of at least $5,000 during a 13 one-year period. 14 16 act. 17 41. Plaintiffs and Class Members sought to maintain the secrecy and 18 confidentiality of their unique, personal, and individual information assets ac19 quired by Defendants, which assets were trade secrets, particularly Plaintiffs' and 20 Class Members' Internet browsing activities. 21 42. The means by which Defendants obtained such information, and the 22 reasons Quantcast engaged in its campaign (user deletion of cookies) demonstrate 23 the confidential character of such information and users' efforts to protect it. 24 25 43. V. CLASS ALLEGATIONS Pursuant to the Federal Rules of Civil Procedure 23(a), (b)(1), (b)(2), 40. Defendants perpetrated the acts and omissions set forth in this com15 plaint through an organized campaign of deployment, which constituted a single

26 and (b)(3), Plaintiffs bring this action as a class action on behalf of themselves 27 and all others similarly situated as members of the Class, defined as follows: 28 All persons in the United States who, during the Class Period,
First Amended and Consolidated Complaint

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1 2 3 4 5 6 7 44.

used any web browsing program on any device to access one or more internet sites controlled, operated, or sponsored by Defendants or any other internet site employing any of Quantcast's technologies involving the use of HTTP "cookies" ("Cookies") or local shared objects stored in Adobe Flash Media local storage ("LSOs"). Excluded from the Class are Defendants, their legal representatives,

8 assigns, and successors, and any entity in which a Defendant has a controlling in9 terest. Also excluded is the judge to whom this case is assigned and the judge's 10 immediate family. 11 13 15 17 45. 46. 47. 48. Plaintiffs reserve the right to revise this definition of the Class based The Class consists of millions of individuals and other entities, makThe claims of Plaintiffs are typical of the claims of all other Class Plaintiffs will fairly and adequately represent the interests of the oth12 on facts learned in the course of litigation of this matter. 14 ing joinder impractical. 16 Members. 18 er Class Members. Plaintiffs have retained counsel with substantial experience in 19 prosecuting complex litigation and class actions. Plaintiffs and their counsel are 20 committed to prosecuting this action vigorously on behalf of Class Members and 21 have the financial resources to do so. Neither Plaintiffs nor their counsel have any 22 interests adverse to those of the other Class Members. 23 25 49. 50. Absent a class action, most Class Members would find the cost of litThe class treatment of common questions of law and fact is superior 24 igating their claims to be prohibitive and would have no effective remedy. 26 to multiple individual actions or piecemeal litigation in that it conserves the re27 sources of the courts and the litigants, and promotes consistency and efficiency of 28 adjudication.
First Amended and Consolidated Complaint

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1

51.

Defendants have acted and failed to act on grounds generally appli-

2 cable to Plaintiffs and the other Class Members, requiring the Court's imposition 3 of uniform relief to ensure compatible standards of conduct toward the Class 4 Members. 5 52. The factual and legal bases of Defendants' liability to Plaintiffs and 6 other Class Members are the same, resulting in injury to Plaintiffs and all of the 7 other Class Members. Plaintiffs and the other Class Members have all suffered 8 harm and damages as a result of Defendants' wrongful conduct. 9 53. There are many questions of law and fact common to Plaintiffs and 10 the Class Members and those questions predominate over any questions that may 11 affect individual Class Members. Common questions for the Class include, but 12 are not limited to the following, regarding Defendants' conduct described herein: 13 a. whether Defendants, without authorization, created and/or 14 manipulated Adobe Flash Player local stored objects on computers to which Class 15 Members' enjoyed rights of possession superior to those of Defendants; 16 18 19 20 21 22 23 24 25 26 27 d. 28 sets of Class Members;
First Amended and Consolidated Complaint

b. c.

for what purposes Defendants created and/or manipulated whether Defendants violated: i. ii. iii. iv. v. the Computer Fraud and Abuse Act, 18 U.S.C. § 1030; the California Uniform Trade Secrets Act, Civil Code § 3426; the California Computer Crime Law, Penal Code § 502; the California Unfair Competition Law, Business and Professions Code § 17200; the California Consumer Legal Remedies Act, Civil Code § 1750; and whether Defendants misappropriated valuable information as-

17 Adobe Flash Player local stored objects on Class Members' computers;

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1 3 5 6 54.

e. f. g.

whether Defendants continue to retain valuable information what uses of such information were exercised and continue to whether Defendants have been unjustly enriched.

2 assets from and about Class Members; 4 be exercised by Defendants; and The questions of law and fact common to Class Members predomi-

7 nate over any questions affecting only individual members, and a class action is 8 superior to all other available methods for the fair and efficient adjudication of 9 this controversy. 10 11 12 13 14 55. Plaintiffs incorporate the above allegations by reference as if set 15 forth herein at length. 56. The Computer Fraud and Abuse Act, 18 U.S.C. § 1030, referred to 16 17 as "CFAA," regulates fraud and relates activity in connection with computers, 18 and makes it unlawful to intentionally access a computer used for interstate com19 merce or communication, without authorization or by exceeding authorized ac20 cess to such a computer, thereby obtaining information from such a protected 21 computer, within the meaning of U.S.C. § 1030(a)(2)(C). 57. Defendants violated 18 U.S.C. § 1030 by intentionally accessing a 22 23 Plaintiffs' and Class Members' computers without authorization or by exceeding 24 access, thereby obtaining information from such a protected computer. 25 58. The Computer Fraud and Abuse Act, 18 U.S.C. § 1030(g), provides 26 a civil cause of action to "any person who suffers damage or loss by reason of a 27 violation" of CFAA. 28 59. The Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(5)(A)(i), 13 COUNT I Violation of the Computer Fraud and Abuse Act 18 U.S.C. § 1030 et seq. Against All Defendants

First Amended and Consolidated Complaint

1 makes it unlawful to "knowingly cause[s] the transmission of a program, infor2 mation, code, or command and as a result of such conduct, intentionally cause[s] 3 damage without authorization, to a protected computer," of a loss to one or more 4 persons during any one-year period aggregating at least $5,000 in value. 5 60. Plaintiffs' computers are "protected computer[s]...which [are] used 6 in interstate commerce and/or communication" within the meaning of 18 U.S.C. § 7 1030(e)(2)(B). 8 61. Defendants violated 18 U.S.C. § 1030(a)(2)(C) by intentionally ac9 cessing a Plaintiffs' computers, without authorization or by exceeding access, 10 thereby obtaining information from such a protected computers. 11 62. Defendants violated 18 U.S.C. § 1030(a)(5)(A)(i) by knowingly 12 causing the transmission of a command embedded within their webpages, down13 loaded to Plaintiffs' computers, which are protected computers as defined in 18 14 U.S.C. § 1030(e)(2)(B). By accessing, collecting, and transmitting Plaintiffs' 15 viewing habits, Defendants intentionally caused damage without authorization to 16 those Plaintiffs' and Class Members' computers by impairing the integrity of the 17 computers. 18 63. Defendants violated 18 U.S.C. § 1030(a)(5)(A)(ii) by intentionally 19 accessing Plaintiffs' and Class Members' protected computers without authoriza20 tion, and as a result of such conduct, recklessly caused damage to Plaintiffs' and 21 Class Members' computers by impairing the integrity of data and/or system 22 and/or information. 23 64. Defendants violated 18 U.S.C. § 1030(a)(5)(A)(iii) by intentionally 24 accessing Plaintiffs' and Class Members' protected computers without authoriza25 tion, and as a result of such conduct, caused damage and loss to Plaintiffs and 26 Class Members. 27 65. Plaintiffs and Class have suffered damage by reason of these viola28 tions, as defined in 18 U.S.C. § 1030(e)(8), by the "impairment to the integrity or
First Amended and Consolidated Complaint

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1 availability of data, a program, a system or information." 2 66. Plaintiffs and Class Members have suffered loss by reason of these 3 violations, as defined in 18 U.S.C. § 1030(e)(11), by the "reasonable cost ... in4 cluding the cost of responding to an offense, conducting a damage assessment, 5 and restoring the data, program, system, or information to its condition prior to 6 the offense, and any revenue lost, cost incurred, or other consequential damages 7 incurred because of interruption of service." 8 67. Plaintiffs and Class Members have suffered loss by reason of these 9 violations, including, without limitation, violation of the right of privacy, inter10 ception and disclosure of uniquely identifying, sensitive, and transactional infor11 mation that otherwise is private, confidential, and not of public record. 12 68. As a result of these takings, Defendants' conduct has caused a loss to 13 one or more persons during any one-year period aggregating at least $5,000 in 14 value in real economic damages. 15 17 vacy. 18 70. Defendants' unlawful access to Plaintiffs' and Class Members' com19 puters and electronic communications has caused Plaintiffs and Class Members 20 irreparable injury. Unless restrained and enjoined, Defendants will continue to 21 commit such acts. Plaintiffs' and Class Members remedy at law is not adequate 22 to compensate it for these inflicted and threatened injuries, entitling Plaintiffs and 23 Class Members to remedies including injunctive relief as provided by 18 U.S.C. 24 § 1030(g). 25 26 27 28 71. Count II Violation of California's Computer Crime Law ("CCCL") California Penal Code § 502 Against All Defendants Plaintiffs incorporate the above allegations by reference as if set 15 69. Plaintiffs and Class Members have additionally suffered loss by rea16 son of these violations, including, without limitation, violation of the right of pri-

First Amended and Consolidated Complaint

1 forth herein at length. 2 4 72. 73. Plaintiffs assert this claim against each and every Defendant named The California Computer Crime Law, California Penal Code § 502, 3 herein in this complaint on behalf of themselves and the Class. 5 referred to as "CCCL" regulates "tampering, interference, damage, and unauthor6 ized access to lawfully created computer data and computer systems." 7 74. Defendants violated California Penal Code § 502 by knowingly ac8 cessing, copying, using, made use of, interfering, and/or altering, data belonging 9 to Plaintiffs and Class Members: (1) in and from the State of California; (2) in the 10 home states of the Plaintiffs and Class Members; and (3) in the state in which the 11 servers that provided the communication link between Plaintiffs and Class Mem12 bers and the websites they interacted with were located. 13 75. Pursuant to California Penal Code § 502(b)(1), "Access means to 14 gain entry to, instruct, or communicate with the logical, arithmetical, or memory 15 function resources of a computer, computer system, or computer network." 16 76. Pursuant to California Penal Code § 502(b)(6), "Data means a repre17 sentation of information, knowledge, facts, concepts, computer software, comput18 er programs or instructions. Data may be in any form, in storage media, or as 19 stored in the memory of the computer or in transit or presented on a display de2 0 vice." 21 77. Pursuant to California Penal Code § 502(b)(8), "Injury means any al22 teration, deletion, damage, or destruction of a computer system, computer net23 work, computer program, or data caused by the access, or the denial of access to 24 legitimate users of a computer system, network, or program." 25 78. Pursuant to California Penal Code § 502(b)(10) a "Computer con26 taminant means any set of computer instructions that are designed to modify, 27 damage, destroy, record, or transmit information within a computer, computer 28 system, or computer network without the intent or permission of the owner of the
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1 information. They include, but are not limited to, a group of computer instructions 2 commonly called viruses or worms, that are self-replicating or self-propagating 3 and are designed to contaminate other computer programs or computer data, con4 sume computer resources, modify, destroy, record, or transmit data, or in some 5 other fashion usurp the normal operation of the computer, computer system, or 6 computer network." 7 79. Defendants have violated California Penal Code § 502(c)(1) by 8 knowingly accessing and without permission, altering, and making use of data 9 from Plaintiffs' computers in order to devise and execute business practices to 10 deceive Plaintiffs and Class Members into surrendering private electronic com11 munications and activities for Defendants' financial gain, and to wrongfully ob12 tain valuable private data from Plaintiffs. 13 80. Defendants have violated California Penal Code § 502(c)(2) by 14 knowingly accessing and without permission, taking, or making use of data from 15 Plaintiff's computers. 16 81. Defendants have violated California Penal Code § 502(c)(3) by 17 knowingly and without permission, using and causing to be used Plaintiff's com18 puter services. 19 82. Defendants have violated California Penal Code § 502(c)(4) by 20 knowingly accessing and without permission, adding and/or altering the data from 21 Plaintiffs' computers. 22 83. Defendants have violated California Penal Code § 502(c)(5) by 23 knowingly and without permission, disrupting or causing the disruption of Plain24 tiffs' computer services or denying or causing the denial of computer services to 25 Plaintiffs. 26 84. Defendants have violated California Penal Code § 502(c)(6) by 27 knowingly and without permission providing, or assisting in providing, a means 28 of accessing Plaintiffs' computers, computer system, and/or computer network.
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1

85.

Defendants have violated California Penal Code § 502(c)(7) by

2 knowingly and without permission accessing, or causing to be accessed, Plain3 tiffs' computer, computer system, and/or computer network. 4 86. Defendants have violated California Penal Code § 502(c)(8) by 5 knowingly introducing a computer contaminant into the Plaintiffs' computer, 6 computer system and/or computer network to obtain data regarding Plaintiffs' 7 electronic communications. 8 87. California Penal Code § 502(j) states: "For purposes of bringing a 9 civil or a criminal action under this section, a person who causes, by any means, 10 the access of a computer, computer system, or computer network in one jurisdic11 tion from another jurisdiction is deemed to have personally accessed the comput12 er, computer system, or computer network in each jurisdiction." 13 88. Plaintiffs and Class Members have also suffered irreparable injury 14 from these unauthorized acts of disclosure, to wit: all of their personal, private, 15 and sensitive electronic communications have been harvested, viewed, accessed, 16 stored, and used by Defendants, and have not been destroyed, and due to the con17 tinuing threat of such injury, have no adequate remedy at law, entitling Plaintiffs 18 and Class Members to injunctive relief. 19 2 1 vacy. 22 90. As a direct and proximate result of Defendants' unlawful conduct 23 within the meaning of California Penal Code § 502, Defendants have caused loss 24 to Plaintiffs and Class Members in an amount to be proven at trial. Plaintiffs and 25 Class Members are also entitled to recover their reasonable attorneys' fees pursu26 ant to California Penal Code § 502(e). 27 91. Plaintiffs and the Class Members seek compensatory damages, in an 28 amount to be proven at trial, and injunctive or other equitable relief.
First Amended and Consolidated Complaint

89.

Plaintiffs and Class Members have additionally suffered loss by rea-

20 son of these violations, including, without limitation, violation of the right of pri-

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92.

Plaintiffs and Class Members have suffered irreparable and incalcu-

2 lable harm and injuries from Defendants' violations. The harm will continue un3 less Defendants are enjoined from further violations of this section. Plaintiffs and 4 Class Members have no adequate remedy at law. 5 93. Plaintiffs and the Class Members are entitled to punitive or exempla6 ry damages pursuant to Cal. Penal Code § 502(e)(4) because Defendants' viola7 tion were willful and, on information and belief, Defendants are guilty of oppres8 sion, fraud, or malice as defined in Cal. Civil Code § 3294. 9 94. Defendants' unlawful access to Plaintiff's and Class Members' com10 puters and electronic communications has caused them irreparable injury. Unless 11 restrained and enjoined, Defendants will continue to commit such acts. Plaintiffs' 12 and Class Members' remedy at law is not adequate to compensate it for these in13 flicted and threatened injuries, entitling Plaintiffs and Class Members to remedies 14 including injunctive relief as provided by California Penal Code § 502(e). Count III 15 Violation of the California Invasion of Privacy Act 16 Penal Code section 630 et seq. Against All Defendants 17 18 95. Plaintiffs incorporate the above allegations by reference as if set 19 forth herein at length. 96. Plaintiffs assert this claim against each and every Defendant named 20 21 herein in this complaint on behalf of themselves and the Class. 97. California Penal Code section 630 provides, in part: 22 Any person who, . . . or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, 23 or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or 24 passing over any wire, line, or cable, or is being sent from, or 25 received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any 26 way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, 27 or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable . . . 28
First Amended and Consolidated Complaint

19

1

98.

On information and belief, each Plaintiff and each Class Member,

2 during one or more of their interactions on the Internet during the Class period, 3 communicated with one or more web entities based in California, or with one or 4 more entities whose servers were located in California. 5 99. Communications from the California web-based entities to Plaintiffs 6 and Class Members were sent from California. Communications to the California 7 web-based entities from Plaintiff and Class Members were sent to California. 8 100. Plaintiffs and Class Members did not consent to any of the Defend9 ants' actions in intercepting, reading, and/or learning the contents of their com10 munications with such California-based entities. 11 101. Plaintiffs and Class Members did not consent to any of the Defend12 ants' actions in using the contents of their communications with such California13 based entities. 14 16 102. Defendants are not a "public utility engaged in the business of 103. The actions alleged herein by the Defendants were not undertaken: 15 providing communications services and facilities . . ." 17 "for the purpose of construction, maintenance, conduct or operation of the ser18 vices and facilities of the public utility." 19 104. The actions alleged herein by the Defendants were not undertaken in 20 connection with: "the use of any instrument, equipment, facility, or service fur21 nished and used pursuant to the tariffs of a public utility." 22 105. The actions alleged herein by the Defendants were not undertaken 23 with respect to any telephonic communication system used for communication 24 exclusively within a state, county, city and county, or city correctional facility. 25 106. The Defendants directly participated in the interception, reading, 26 and/or learning the contents of the communications between Plaintiffs, Class 27 Members and California-based web entities. 28 107. Alternatively, and of equal violation of the California Invasion of 20

First Amended and Consolidated Complaint

1 Privacy Act, the Defendants aided, agreed with, and/or conspired with Quantcast 2 to unlawfully do, or permit, or cause to be done all of the acts complained of 3 herein. 4 6 vacy. 7 109. Unless restrained and enjoined, Defendants will continue to commit 8 such acts. Pursuant to Section 637.2 of the California Penal Code, Plaintiffs and 9 the Class have been injured by the violations of California Penal Code section 10 631. Wherefore, Plaintiffs, on behalf of themselves and on behalf of a similarly 11 situated Class of consumers, seek damages and injunctive relief. COUNT IV 12 Violations of the Consumer Legal Remedies Act 13 ("CLRA") California Civil Code § 1750, et seq. Against All Defendants 14 110. Plaintiffs incorporate the foregoing allegations as if fully set forth 15 16 herein. 111. In violation of Civil Code section 1750, et seq. (the "CLRA"), De17 18 fendants have engaged and is engaging in unfair and deceptive acts and practices 19 in the course of transactions with Plaintiffs, and such transactions are intended to 20 and have resulted in the sales of services to consumers. Plaintiffs and the Class 21 Members are "consumers" as that term is used in the CLRA because they sought 22 or acquired Defendants' good or services for personal, family, or household pur23 poses. Defendants' past and ongoing acts and practices include but are not limited 24 to: 25 26 27 28 a) Defendants' representations that their services have characteristics, uses, and benefits that they do not have, in violation of Civil Code § 1770(a)(5); b) Defendants' representations that their services are of a particular
First Amended and Consolidated Complaint

108. Plaintiffs and Class Members have additionally suffered loss by rea-

5 son of these violations, including, without limitation, violation of the right of pri-

21

1 2 3 4 5 6

standard, quality and grade but are of another standard quality and grade, in violation of Civil Codes § 1770(a)(7); and c) Defendants' advertisement of services with the intent not to sell those services as advertised, in violation of Civil Code § 1770(a)(9). 112. Defendants' violations of Civil Code § 1770 have caused damage to

7 Plaintiffs and the other Class Members and threaten additional injury if the viola8 tions continue. This damage includes the losses set forth above. 9 113. At this time, Plaintiffs seek only injunctive relief under this cause of 10 action. Pursuant to California Civil Code, Section 1782, Plaintiffs will notify De11 fendants in writing of the particular violations of Civil Code, Section 1770 and 12 demand that Defendants rectify the problems associated with their behavior de13 tailed above, which acts and practices are in violation of Civil Code § 1770, 14 though Plaintiffs contend that they have already met this notification burden by 15 filing their original complaints. 16 114. If Defendants fails to respond adequately to Plaintiffs' above de17 scribed demand within 30 days of Plaintiffs' notice, pursuant to California Civil 18 Code, Section 1782(b), Plaintiffs may amend the complaint to request damages 19 and other relief, as permitted by Civil Code, Section 1780. COUNT V 20 Violations of the Unfair Competition Law ("UCL") California 21 Business and Professions Code § 17200, et seq. 22 Against All Defendants 23 25 115. Plaintiffs incorporate the foregoing allegations as if fully set forth 116. In violation of California Business and Professions Code § 17200 et 24 herein. 26 seq., Defendants' conduct in this regard is ongoing and includes, but is not lim27 ited to, unfair, unlawful and fraudulent conduct. 28 117. By engaging in the above-described acts and practices, Defendants
First Amended and Consolidated Complaint

22

1 have committed one or more acts of unfair competition within the meaning of the 2 UCL and, as a result, Plaintiffs and the Class have suffered injury-in-fact and 3 have lost money and/or property--specifically, personal information and/or regis4 tration fees. 5 118. Defendants' business acts and practices are unlawful, in part, be6 cause they violate California Business and Professions Code § 17500, et seq., 7 which prohibits false advertising, in that they were untrue and misleading state8 ments relating to Defendants' performance of services and with the intent to in9 duce consumers to enter into obligations relating to such services, and regarding 10 statements Defendants knew were false or by the exercise of reasonable care De11 fendants should have known to be untrue and misleading. 12 119. Defendants' business acts and practices are also unlawful in that they 13 violate the California Consumer Legal Remedies Act, California Civil Code, Sec14 tions 1647, et seq., 1750, et seq., and 3344, California Penal Code, section 502, 15 and Title 18, United States Code, Section 1030. Defendants are therefore in viola16 tion of the "unlawful" prong of the UCL. 17 120. Defendants' business acts and practices are unfair because they 18 cause harm and injury-in-fact to Plaintiffs and Class Members and for which De19 fendants has no justification other than to increase, beyond what Defendants 20 would have otherwise realized, their profit in fees from advertisers and their in21 formation assets through the acquisition of consumers' personal information. De22 fendants' conduct lacks reasonable and legitimate justification in that Defendants 23 have benefited from such conduct and practices while Plaintiffs and the Class 24 Members have been misled as to the nature and integrity of Defendants' services 25 and have, in fact, suffered material disadvantage regarding their interests in the 26 privacy and confidentiality of their personal information. Defendants' conduct of27 fends public policy in California tethered to the Consumer Legal Remedies Act, 28 the state constitutional right of privacy, and California statutes recognizing the
First Amended and Consolidated Complaint

23

1 need for consumers to obtain material information that enables them to safeguard 2 their own privacy interests, including California Civil Code, Section 1798.80. 3 121. In addition, Defendants' modus operandi constitutes a sharp practice 4 in that Defendants knew, or should have known, that consumers care about the 5 status of personal information and email privacy but were unlikely to be aware of 6 the manner in which Defendants failed to fulfill their commitments to respect 7 consumers' privacy. Defendants are therefore in violation of the "unfair" prong of 8 the UCL. 9 122. Defendants' acts and practices were fraudulent within the meaning 10 of the UCL because they are likely to mislead the members of the public to whom 11 they were directed. 12 13 14 Count VI Trespass to Personal Property / Chattels Against All Defendants 123. Plaintiffs incorporate by reference and reallege all paragraphs previ-

15 ously alleged herein. 16 124. The common law prohibits the intentional intermeddling with per17 sonal property, including a computer, in possession of another that results in the 18 deprivation of the use of the personal property or impairment of the condition, 19 quality, or usefulness of the personal property. 20 125. By engaging in the acts alleged in this complaint without the author21 ization or consent of Plaintiffs and Class Members, Defendants dispossessed 22 Plaintiffs and Class Members from use and/or access to their computers, or parts 23 of them. Further, these acts impaired the use, value, and quality of Plaintiffs' and 24 Class Members' computers. Defendants' acts constituted an intentional interfer25 ence with the use and enjoyment of the computers. By the acts described above, 26 Defendants have repeatedly and persistently engaged in trespass to personal prop27 erty in violation of the common law. 28 126. Without Plaintiffs' and Class Members' consent, or in excess of any
First Amended and Consolidated Complaint

24

1 consent given, Defendants knowingly and intentionally accessed Plaintiffs' and 2 Class Members' property, thereby intermeddling with Plaintiffs' and Class Mem3 bers' right to possession of the property and causing injury to Plaintiffs and the 4 members of the Class. 5 7 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 127. Defendants engaged in deception and concealment in order to gain 128. Defendants undertook the following actions with respect to Plaina) Defendants accessed and obtained control over the user's computer; b) Defendants caused the installation of a new code onto the hard drive of the user's computer; c) Defendants programmed the operation of its code to function and operate without notice or consent on the part of the owner of the computer, and outside of the control of the owner of the computer. 129. All these acts described above were acts in excess of any authority any user granted when he or she visited the Publishers' websites and none of these acts was in furtherance of users' viewing content on or utilizing the Publishers' websites. By Defendants' engaging in deception and misrepresentation, whatever authority or permission Plaintiff and Class Members may have granted to Publishers was rendered ineffective. 130. Defendants' installation and operation of its program used, interfered, and/or intermeddled with Plaintiffs' and Class Members' computer systems. Such use, interference and/or intermeddling was without Class Members' consent or, in the alternative, in excess of Plaintiffs' and Class Members' consent. 131. Defendants' installation and operation of its program constitutes trespass, nuisance, and an interference with Class Members' chattels, to wit, their
First Amended and Consolidated Complaint

6 access to Plaintiffs and Class Members' computers. 8 tiffs' and Class Members' computers:

25

1 computers. 2 4 6 132. Defendants' installation and operation of its program impaired the 133. Defendants trespass to chattels, nuisance, and interference caused re134. As a direct and proximate result of Defendants' trespass to chattels, 3 condition and value of Class Members' computers. 5 al and substantial damage to Plaintiffs and Class Members. 7 nuisance, interference, unauthorized access of and intermeddling with Plaintiffs' 8 and Class Members' property, Defendants has injured and impaired in the condi9 tion and value of Class Members' computers, as follows: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 a) By consuming the resources of and/or degrading the performance of Plaintiffs' and Class Members' computers (including hard drive space, memory, processing cycles, and Internet connectivity); b) By diminishing the use of, value, speed, capacity, and/or capabilities of Plaintiffs' and Class Members' computers; c) By devaluing, interfering with, and/or diminishing Plaintiffs' and Class Members' possessory interest in their computers; d) By altering and controlling the functioning of Plaintiffs' and Class Members' computers; e) By infringing on Plaintiff's and Class Members' right to exclude others from their computers; f) By infringing on Plaintiffs' and Class Members' right to determine, as owners of their computers, which programs should be installed and operating on their computers; g) By compromising the integrity, security, and ownership of Class Members' computers; and h) By forcing Plaintiffs and Class Members' to expend money, time,
First Amended and Consolidated Complaint

26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

and resources in order to remove the program installed on their computers without notice or consent. Count VII Unjust Enrichment 135. Plaintiffs incorporate the above allegations by reference as if set forth herein at length. 136. A benefit has been conferred upon all Defendants by Plaintiffs and the Class. On information and belief, Defendants, directly or indirectly, have received and retain information regarding online communications and activity of Plaintiffs, and Defendants have received and retain information regarding specific purchase and transactional information that is otherwise private, confidential, and not of public record, and/or have received revenue from the provision of such information. 137. Defendants appreciate or have knowledge of said benefit. 138. Under principles of equity and good conscience, Defendants should not be permitted to retain the information and/or revenue that they acquired by virtue of their unlawful conduct. All funds, revenues, and benefits received by Defendants rightfully belong to Plaintiffs and the Class, which Defendants have unjustly received as a result of its actions. PRAYER FOR RELIEF WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly situated, prays for judgment against Defendants as follows: 1. Certify this case as a Class action on behalf of the Classes defined above, appoint Plaintiffs as Class representatives, and appoint their counsel as Class counsel; 2. following: a. Computer Fraud and Abuse Act, 18 U.S.C. § 1030; 27 Declare that the actions of Defendants, as set out above, violate the

First Amended and Consolidated Complaint

1 2 3 4 5 6 7 8 9 10 3.

b. California's Computer Crime Law, Penal Code § 502; c. California's Invasion Of Privacy Act, California Penal Code § 630; d. California's Consumer Legal Remedies Act, Civil Code § 1750; e. California's Unfair Competition Law, Business and Professions Code § 17200; f. Trespass to Personal Property / Chattels; g. Unjust Enrichment As applicable to the Classes mutatis mutandis, awarding injunctive

11 and equitable relief including, inter alia: (i) prohibiting Defendants from engaging 12 in the acts alleged above; (ii) requiring Defendants to disgorge all of its ill-gotten 13 gains to Plaintiffs and the other Class Members, or to whomever the Court deems 14 appropriate; (iii) requiring Defendants to delete all data surreptitiously or 15 otherwise collected through the acts alleged above; (iv) requiring Defendants to 16 provide Plaintiffs and the other Class Members a means to easily and 17 permanently decline any participation in any data collection activities; (v) 18 awarding Plaintiffs and Class Members full restitution of all benefits wrongfully 19 acquired by Defendants by means of the wrongful conduct alleged herein; and 20 (vi) ordering an accounting and constructive trust imposed on the data, funds, or 21 other assets obtained by unlawful means as alleged above, to avoid dissipation, 22 fraudulent transfers, and/or concealment of such assets by Defendants; 23 25 27 4. 5. 6. Award damages, including statutory damages where applicable, to Award restitution against Defendants for all money to which Restrain Defendants, their officers, agents, servants, employees, and 24 Plaintiffs and Class Members in an amount to be determined at trial; 26 Plaintiffs and the Classes are entitled in equity; 28 attorneys, and those in active concert or participation with them from continued
First Amended and Consolidated Complaint

28

1 access, collection, and transmission of Plaintiffs and Class Members' personal 2 information via preliminary and permanent injunction; 3 4 5 6 7 8 9 10 11 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28
First Amended and Consolidated Complaint

7.

Award Plaintiffs and the Class Members: a. their reasonable litigation expenses and attorneys' fees; b. pre- and post-judgment interest, to the extent allowable; c. restitution, disgorgement and/or other equitable relief as the Court deems proper; d. compensatory damages sustained by Plaintiffs and all others similarly situated as a result of Defendants' unlawful acts and conduct; e. statutory damages, including punitive damages; f. permanent injunction prohibiting Defendants from engaging in the conduct and practices complained of herein;

8.

For such other and further relief as this Court may deem just and

15 proper.

29

1 Respectfully, submitted 2 DATED: December 3, 2010 3 4 5 6 7 8 9 10 11 12 13 Avi Kreitenberg (SBN 266571) [e-mail] 14 KamberLaw, LLP 15 1180 South Beverly Drive, Suite 601 Los Angeles, California 90035 16 Telephone: [phone] Facsimile: [phone] 18 Joseph H. Malley (not admitted) [e-mail] 19 Law Office of Joseph H. Malley 20 1045 North Zang Blvd Dallas, TX 75208 Telephone: [phone] 23 David Parisi (SBN 162248) [e-mail] 24 Suzanne Havens Beckman (SBN 188814) 25 [e-mail] Parisi & Havens LLP 26 15233 Valleyheart Drive 27 Sherman Oaks, California 91403 Telephone: [phone]
First Amended and Consolidated Complaint

KAMBERLAW, LLC s/David A. Stampley Scott A. Kamber (pro hac vice) [e-mail] David A. Stampley (pro hac vice) [e-mail] KamberLaw, LLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: [phone] Facsimile: [phone] Interim Counsel for the Class

30

1 Majed Nachawati [e-mail] 2 Fears Nachawati Law Firm 3 4925 Greenville Ave, Suite 715 Dallas, Texas 75206 4 Telephone: [phone] Jeremy Wilson 6 [e-mail] 7 Kenneth P. Trosclair [e-mail] 8 Wilson Trosclair & Lovins, P.L.L.C. 9 302 N. Market St., Suite 510 Dallas, Texas 75202 10 Telephone: [phone] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
First Amended and Consolidated Complaint

31

1 2 3 Respectfully, submitted

JURY TRIAL DEMAND Plaintiff hereby demands a trial by jury of all issues so triable. KAMBERLAW, LLC s/David A. Stampley Scott A. Kamber (pro hac vice) [e-mail] David A. Stampley (pro hac vice) [e-mail] KamberLaw, LLC 100 Wall Street, 23rd Floor New York, New York 10005 Telephone: [phone] Facsimile: [phone] Interim Counsel for the Class

4 DATED: December3, 2010 5 6 7 8 9 10 11 12 13 14

Avi Kreitenberg (SBN 266571) 15 [e-mail] 16 KamberLaw, LLP 1180 South Beverly Drive, Suite 601 17 Los Angeles, California 90035 18 Telephone: [phone] Facsimile: [phone] 19 Joseph H. Malley (not admitted) 20 [e-mail] 21 Law Office of Joseph H. Malley 1045 North Zang Blvd Dallas, TX 75208 22 Telephone: [phone] David Parisi (SBN 162248) 24 [e-mail] 25 Suzanne Havens Beckman (SBN 188814) [e-mail] 26 Parisi & Havens LLP 27 15233 Valleyheart Drive Sherman Oaks, California 91403 28 Telephone: [phone]
First Amended and Consolidated Complaint

32

1 Majed Nachawati [e-mail] 2 Fears Nachawati Law Firm 3 4925 Greenville Ave, Suite 715 Dallas, Texas 75206 4 Telephone: [phone] Jeremy Wilson 6 [e-mail] 7 Kenneth P. Trosclair [e-mail] 8 Wilson Trosclair & Lovins, P.L.L.C. 9 302 N. Market St., Suite 510 Dallas, Texas 75202 10 Telephone: [phone] 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
First Amended and Consolidated Complaint

33