In Re Specific Media Flash Cookie Litig.

Filing 19

FIRST AMENDED, CONSOLIDATED CLASS ACTION COMPLAINT against SpecificMedia, Inc. related to: Complaint #2 ; with Jury Demand filed by Plaintiffs Genevive La Court, Deirde Harris, Cahill Hooker, Bill Lathrop, Judy Stough, E.H. a minor by and through parent Jeff Hall and Stefen Kaufman. (gk) (pj).

/

>C.,
,,---

: -:

.:=

_=

;:;

;:. .. )
r- '.:,

,_

'.:

- 'L""

Avi Kreitenberg (SBN 266571)
[e-mail]
KAMBERLAW, LLP
1180 S; Beverly Dr., Ste. 601
Los Angeles, California 90035
Telephone: [phone]
Facsimile: [phone]
Additional counsel listed on signature page
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION I
IN RE SPECIFIC MEDIA
FLASH LSO LITIGATION

Amended/Consolidated
Class Action Complaint

CASE NO. 8:10-cv-01256-GW (JCGx)
JURY DEMAND
FIRST AMENDED, 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) Violations of Invasion of Privacy Act,
Cal. Penal Code § 630;
4) Violation of Consumer Legal
Remedies Act, Cal. Civ. Code § 1750;
5) Unfair Competition, Cal. Bus. and
Prof. Code § 17200;
6) Trespass to Personal Property/Chattel;
7) Unjust Enrichment

1

Case No.2: 1O-cv-O 1256-GW-lCG

O

t.)

1

FIRST AMENDED AND CONSOLIDATED

2

CLASS ACTION COMPLAINT

3

The persons designated below as plaintiffs (“Plaintiffs”), each on his or

4

her own behalf and on behalf of all others similarly situated, make the following

5

allegations based on personal knowledge and, otherwise, upon information and

6

belief based on investigations of counsel.

7
8

I. NATURE OF THE CASE
1.

Plaintiffs allege that Defendant SpecificMedia, Inc., a web ad-

9

serving company, monitored their online activities, tracking and profiling them

10

without their consent by using technologies that evaded detection and overrode

11

the privacy and security controls on their computers.

12

2.

Plaintiffs allege that Defendant invaded their privacy, intercepted

13

their communications, misappropriated their personal information, and interfered

14

with the operability of their computer and now seek relief for the consequences

15

of Defendant’s conduct.

16
17

II. PARTIES
3.

Plaintiffs in this action are Genevieve La Court; Deirdre Harris; Ca-

18

hill Hooker; Bill Lathrop; Judy Stough; E.H., a minor, by and through parent Jeff

19

Hall; and Stefen Kaufman, who are individuals residing in various locations in

20

the United States.

21

4.

Defendant SpecificMedia, Inc. (“Specific Media” or “Defendant”)

22

operates an web-based advertising network. Specific Media is a California Cor-

23

poration with corporate headquarters at 4 Park Plaza, Suite 1900, Irvine, Califor-

24

nia 92614.

25
26
27
28

III. JURISDICTION AND VENUE
5.

This Court has subject-matter jurisdiction over this action pursuant

to Title 28, United States Code, Section 1331.
6.

Venue is proper in this District under Title 28, United States Code,

Amended/Consolidated
Class Action Complaint

2

Case No. 2:10-cv-01256-GW-JCG

1

Section 1391(b) because defendant Specific Media is a corporation head- quar-

2

tered in Orange County in the State of California.

3

7.

In addition, venue is proper in this District under Title 28, United

4

States Code, Section 1391(b) because Defendant’s improper conduct alleged in

5

this complaint occurred in, was directed from, and/or emanated from this judicial

6

district.
IV. STATEMENT OF FACTS

7
8
9
10
11

A.

Specific Media’s Business
8.

Specific Media is an online third-party ad network that earns its

revenue by delivering targeted advertisements.
9.

According to comScore Media Metrix’s report for October 2010,

12

Specific Media displayed ads to over 153 million users, a “reach” of over 72 per-

13

cent of the total Internet audience, placing Specific Media ninth among online ad

14

networks.

15

10.

When a consumer visits a web page that includes a third-party ad-

16

vertisement, the display of the advertisement occurs because the web page causes

17

the consumer to communicate with the ad network’s systems; thus, Specific Me-

18

dia’s “audience” consists of consumers who visited websites on which Specific

19

Media displayed its clients’ advertisements, not consumers who chose to com-

20

municate with Specific Media or necessarily knew of Specific Media’s existence.

21

11.

Specific Media delivers its clients’ advertisement on an ad network

22

consisting of websites, or “publishers,” which Specific Media pays for its in-

23

ventory. “Inventory” is advertising display space on web pages.

24
25
26

12.

For delivering its ads on Specific Media’s inventory, advertisers pay

Specific Media performance-based fees.
13.

Like many online, third-party services, Specific Media tracks con-

27

sumers by depositing and reading HTTP cookies containing unique identifiers

28

and browsing history information that it uses to create behavioral profiles; when
Amended/Consolidated
Class Action Complaint

3

Case No. 2:10-cv-01256-GW-JCG

1

a profiled consumer visits a web page on which Specific Media serves adver-

2

tisements, Specific Media uses the profile to select particular categories of ads

3

with which to target the user.

4
5
6

14.

Specific Media augmented its tracking technology by using tracking

devices that users could not reasonably detect, block, or delete .
15.

In particular, Specific Media stored tracking devices on consumers’

7

computers in Adobe Flash local shared objects (“LSOs,” sometimes referred to

8

as Flash LSOs).

9

16.

10
11

The LSOs Specific Media stored on users’ computers were stored in

files that listed a domain of origin as http://udn.specificclick.net.
17.

Specific Media used LSOs so it could engage in tracking and profil-

12

ing to circumvent the privacy and security controls of users who had set their

13

browsers’ to block third-party HTTP cookies, block Specific Media’s HTTP

14

cookies, or who deleted Specific Media’s HTTP cookies.

15

18.

In addition, Specific Media used LSOs so that, for a user who de-

16

leted their Specific Media HTTP cookies, Specific Media could use the data in

17

the LSO on the user’s computer as a back-up, to restore or “re-spawn” the de-

18

leted HTTP cookie.

19

19.

Specific Media’s use of this technology was independently con-

20

firmed in a report issued by academic researchers and titled, “Flash LSOs and

21

Privacy.”1

22

20.

In a letter to the Federal Trade Commission earlier this year, Adobe

23
24
25
26
27

1

“Flash LSOs and Privacy,” A. Soltani, S. Canty, Q. Mayo, L. Thomas,
and C.J. Hoofnagle, Univ. Cal., Berkeley, Aug. 10, 2009 at 3, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1446862 (last accessed Jan.
7, 2011) (attached hereto as Exhibit B).

28
Amended/Consolidated
Class Action Complaint

4

Case No. 2:10-cv-01256-GW-JCG

1

Systems Incorporated condemned the use of LSOs to back-up and re-spawn

2

HTTP cookies without express user consent. Letter to FTC, Adobe Systems Inc.,

3

Jan.

4

roundtable/544506-00085.pdf (last accessed July 27, 2010).

5

B.

6

27,

2010,

available

at

http://www.ftc.gov/os/comments/privacy-

Plaintiffs’ Experiences
21.

Plaintiffs are persons who have set the privacy and security controls

7

on their browsers to block third-party cookies and/or who periodically delete

8

third-party cookies.

9

22.

None of the Plaintiffs have given any consent or received any notice

10

regarding Specific Media’s use of devices other than third-party cookies to en-

11

gage in or to approximate cookie-like tracking and profiling activities.

12

23.

Subsequently, Plaintiffs examined the contents of the local storage

13

associated with the Adobe Flash Player application on their computers. They ob-

14

served that the objects in local storage included Flash LSOs set by

15

“http://udn.specificclick.net. It is Plaintiffs’ belief that these objects are tracking

16

devices used by Specific Media, without authorization, to monitor and profile

17

their Internet activities.

18

24.

Plaintiffs did not receive notice of the installation of such devices,

19

did not consent to the installation of such devices, and did not want such devices

20

to be installed on their computers.

21

25.

Plaintiffs believe that, if they were to re-visit the websites on which

22

Specific Media LSOs were set, or were to visit other websites on which Specific

23

Media served online advertisements, the tracking devices would be used as sub-

24

stitutes for HTTP cookies and to re-spawn previously deleted cookies.

25

26.

Plaintiffs consider information about their online activities to be in

26

the nature of confidential information that they protect from disclosure, including

27

by periodically deleting cookies.

28

27.

Plaintiffs’ experiences are typical of the experiences of Class Mem-

Amended/Consolidated
Class Action Complaint

5

Case No. 2:10-cv-01256-GW-JCG

1

bers.

2

C.

User Consequences
28.

3

Defendant manipulated its Flash LSOs in storage areas of Plaintiffs’

4

and Class Members’ computers, which were computers used in and affecting in-

5

terstate commerce and communication and were therefore protected computers

6

as defined in the Computer Fraud and Abuse Act, Title 18, United States Code,

7

Section 1030(e)(2).
29.

8
9

were conducted without authorization and/or exceeding authorization.
30.

10
11

Defendant’s actions were surreptitious and without notice and so
Plaintiffs and Class Members sought to maintain the secrecy and

confidentiality of their personal information assets acquired by Defendant
31.

12

Defendant’s conduct has caused economic loss to Plaintiffs and

13

Class Members in that their personal information has discernable value, both to

14

Defendant and to Plaintiffs and Class Members, and of which Defendant has de-

15

prived Plaintiffs and Class Members and, in addition, retained and used for its

16

own economic benefit.
32.

17

The aggregated loss and damage sustained by Subscribers set forth

18

above includes economic loss with an aggregated value of at least $5,000 during

19

a one-year period.
33.

20

Defendant engaged in the acts and omissions set forth in this com-

21

plaint through an organized campaign of deployment, which constituted a single

22

act.

23

34.

The means by which Defendant obtained such information, and the

24

reasons Defendant engaged in its campaign to circumvent user deletion of cook-

25

ies demonstrate the confidential character of such information and users’ efforts

26

to protect it.
V. CLASS ALLEGATIONS

27
28

35.

Pursuant to the Federal Rules of Civil Procedure 23(a), (b)(1),

Amended/Consolidated
Class Action Complaint

6

Case No. 2:10-cv-01256-GW-JCG

1

(b)(2), and (b)(3), Plaintiffs bring this action as a class action on behalf of them-

2

selves and all others similarly situated as members of the Class, defined as fol-

3

lows:

4

All persons residing in the United States who, during the

5

Class Period, used any web browsing program on any device

6

to access web pages during which time and related to which

7

Specific Media stored Adobe Flash local shared objects

8

(LSOs) on such persons’ computers.

9

36.

Excluded from the Class are Defendant, its legal representatives, as-

10

signs, and successors, and any entity in which Defendant has a controlling inter-

11

est. Also excluded is the judge to whom this case is assigned and the judge’s

12

immediate family.

13
14
15
16
17
18

37.

The “Class Period” is defined as two years prior to the filing of this

action to the date of Class certification.
38.

Plaintiffs reserve the right to revise this definition of the Class based

on facts learned in the course of litigation of this matter.
39.

The Class consists of millions of individuals and other entities, mak-

ing joinder impractical.

19

40.

20

Members

21

41.

The claims of Plaintiffs are typical of the claims of all other Class
Plaintiffs will fairly and adequately represent the interests of the

22

other Class Members. Plaintiffs have retained counsel with substantial experi-

23

ence in prosecuting complex litigation and class actions. Plaintiffs and their

24

counsel are committed to prosecuting this action vigorously on behalf of Class

25

Members and have the financial resources to do so. Neither Plaintiffs nor their

26

counsel have any interests adverse to those of the other Class Members.

27
28

42.

Absent a class action, most Class Members would find the cost of

litigating their claims to be prohibitive and will have no effective remedy.
Amended/Consolidated
Class Action Complaint

7

Case No. 2:10-cv-01256-GW-JCG

43.

1

The class treatment of common questions of law and fact is superior

2

to multiple individual actions or piecemeal litigation in that it conserves the re-

3

sources of the courts and the litigants, and promotes consistency and efficiency

4

of adjudication.

5

44.

Defendant has acted and failed to act on grounds generally applica-

6

ble to Plaintiffs and the other Class Members, requiring the Court’s imposition of

7

uniform relief to ensure compatible standards of conduct toward the Class Mem-

8

bers.

9

45.

The factual and legal bases of Defendant’s liability to Plaintiffs and

10

other Class Members are the same, resulting in injury to Plaintiffs and all of the

11

other Class Members. Plaintiffs and the other Class Members have all suffered

12

harm and damages as a result of Defendant’s wrongful conduct.

13

46.

There are many questions of law and fact common to Plaintiffs and

14

the Class Members and those questions predominate over any questions that may

15

affect individual Class Members. Common questions for the Class include, but

16

are not limited to the following, regarding Defendant’s conduct described herein:

17

a.

whether Defendant, without authorization, created and/or ma-

18

nipulated Adobe Flash Player local stored objects on computers to which Class

19

Members’ enjoyed rights of possession superior to those of Defendant;

20
21
22
23

b.

for what purposes Defendant created and/or manipulated

Adobe Flash Player local stored objects on Class Members’ computers;
c.

whether Defendant’s conduct constituted statutory and com-

mon-law violations that include::

24

i.

the Computer Fraud and Abuse Act, 18 U.S.C. § 1030;

25

ii.

the Computer Crime Law, Cal. Penal Code § 502;

26

iii.

the Invasion of Privacy Act, Cal. Penal Code § 630;

27

iv.

the Consumer Legal Remedies Act, Cal. Civ. Code §
1750;

28
Amended/Consolidated
Class Action Complaint

8

Case No. 2:10-cv-01256-GW-JCG

1

v.

Unfair Competition, Cal. Bus. and Prof. Code § 17200;

2

vi.

Trespass to Personal Property/Chattel;

3

vii.

Unjust Enrichment

4
5

d.

assets from and about Class Members;

6
7

e.

what uses of such information were exercised and continue to

be exercised by Defendant; and

8
9

whether Defendant continues to retain valuable information

f.
47.

whether Defendant has been unjustly enriched.

The questions of law and fact common to Class Members predomi-

10

nate over any questions affecting only individual members, and a class action is

11

superior to all other available methods for the fair and efficient adjudication of

12

this controversy.

13

48.

14

Based on the foregoing allegations, Plaintiffs’ claims for relief in-

clude those set forth below.

15

COUNT I

16

VIOLATION OF THE COMPUTER FRAUD AND ABUSE ACT

17

18 U.S.C. § 1030, et seq.

18
19
20

49.

Plaintiffs here incorporate and reallege all allegations set out in

paragraphs 1 through 48, above.
50.

Defendant intentionally accessed Plaintiffs’ and Class members’

21

computers, which were computers used for interstate commerce and/or commu-

22

nications; Defendant did so without authorization and/or exceeding authorized

23

access to such computers; and Defendant thereby obtained information from

24

such protected computers in violation of Title 18, United States Code, Section

25

1030(a)(2)(C).

26

51.

27

Further, Defendant knowingly caused the transmission of a pro-

gram, information, code, or command, and as a result of such conduct, intention-

28
Amended/Consolidated
Class Action Complaint

9

Case No. 2:10-cv-01256-GW-JCG

1

ally caused damage without authorization, to a protected computer in violation of

2

Title 18, United States Code, Section 1030(a)(5)(A).

3

52.

Defendant intentionally accessed Plaintiffs’ and Class members’

4

protected computers without authorization, and as a result of such conduct, reck-

5

lessly caused damage in violation of Title 18, United States Code, Section

6

1030(a)(5)(B).

7

53.

Defendant intentionally accessed Plaintiffs’ and Class members’

8

protected computers without authorization, and as a result of such conduct,

9

caused damage and loss.

10

54.

Defendant’s conduct in setting Adobe LSOs on consumers’ comput-

11

ers arose from an automated process instigated by defendant in a campaign that

12

constituted a single act, for purposes of the Computer Fraud and Abuse Act.

13

55.

Defendant’s conduct in setting LSOs on Plaintiffs’ and Class Mem-

14

bers’ computers, circumventing and diminishing such computers’ performance

15

and capabilities, as further alleged herein, and collecting personal information

16

that has economic value to Plaintiffs and the unauthorized collection of which re-

17

sulted in the deprivation or diminution of such economic value, caused Plaintiffs

18

and Class Members to sustain aggregated loss and damage, including economic

19

loss with an aggregated value of at least $5,000 during a one-year period.

20

56.

Further, Defendant’s access to Plaintiffs’ and Class Members’ pro-

21

tected computers and electronic communications has caused Plaintiffs and Class

22

Members irreparable injury. Unless restrained and enjoined, Defendant will con-

23

tinue to commit such acts.

24

57.

Further Plaintiffs’ and Class Members’ remedy at law is not ade-

25

quate to compensate them for harm to them, entitling Plaintiffs and Class Mem-

26

bers to remedies that include injunctive relief as provided by Title 18, United

27

States Code, Section 1030(g).

28
Amended/Consolidated
Class Action Complaint

10

Case No. 2:10-cv-01256-GW-JCG

1

COUNT II

2

VIOLATION OF THE COMPUTER CRIME LAW (“CCCL”)

3

CALIFORNIA PENAL CODE § 502

4
5
6

58.

Plaintiffs here incorporate and reallege all allegations set out in

paragraphs 1 through 57, above.
59.

Defendant violated California Penal Code section 502 by knowingly

7

accessing, copying, using, made use of, interfering, and/or altering, data belong-

8

ing to Plaintiffs and Class Members: (1) in and from the State of California; (2)

9

in the home states of the Plaintiffs and Class Members; and (3) in the state in

10

which the servers that provided the communication link between Plaintiffs and

11

Class Members and the websites they interacted with were located.

12

60.

Defendant violated California Penal Code section 502(c)(1) by

13

knowingly accessing and without permission altering and making use of data

14

from Plaintiffs’ and Class Members’ computers in order to devise and execute

15

business practices to deceive Plaintiffs and Class Members into surrendering pri-

16

vate electronic communications and activities for Defendant’s financial gain, and

17

to wrongfully obtain valuable private data from Plaintiffs.

18

61.

Defendant violated California Penal Code section 502(c)(2) by

19

knowingly accessing and without permission taking, or making use of data from

20

Plaintiffs’ and Class Members’ computers.

21

62.

Defendant violated California Penal Code section 502(c)(3) by

22

knowingly and without permission using and causing to be used Plaintiffs’ and

23

Class Members’ computer services.

24

63.

Defendant violated California Penal Code section 502(c)(4) by

25

knowingly accessing and, without permission, adding and/or altering the data

26

from Plaintiffs’ and Class Members’ computers.

27
28

64.

Defendant violated California Penal Code section 502(c)(5) by

knowingly and without permission disrupting or causing the disruption of PlainAmended/Consolidated
Class Action Complaint

11

Case No. 2:10-cv-01256-GW-JCG

1

tiffs’ and Class Members’ computer services or denying or causing the denial of

2

computer services to Plaintiffs and the Class.

3

65.

Defendant violated California Penal Code section 502(c)(6) by

4

knowingly and without permission providing, or assisting in providing, a means

5

of accessing Plaintiffs’ and Class Members’ computers, computer system, and/or

6

computer network.

7

66.

Defendant violated California Penal Code section 502(c)(7) by

8

knowingly and without permission accessing or causing to be accessed Plaintiffs

9

and Class Members’ computers, computer systems, and/or computer networks.

10

67.

Defendant violated California Penal Code section 502(c)(8) by

11

knowingly introducing a computer contaminant into the Plaintiffs’ and Class

12

Members’ computers, computer systems, and/or computer networks, and doing

13

so to obtain data regarding Plaintiffs’ and Class Members’ electronic communi-

14

cations.

15

68.

Plaintiffs and Class Members have also suffered irreparable injury

16

from these unauthorized acts of disclosure in that their information has been har-

17

vested, retained, and used by Defendant, and continues to be retained and used

18

by Defendant; due to the continuing threat of such injury and, in addition, the

19

threat that Defendant will transfer Plaintiffs and Class Members’ information to

20

yet other third parties, Plaintiffs and Class Members have no adequate remedy at

21

law, entitling them to injunctive relief.

22

69.

Plaintiffs and Class Members have additionally suffered loss by rea-

23

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

24

vacy.

25

70.

As a direct and proximate result of Defendant’s unlawful conduct

26

within the meaning of California Penal Code section 502, Defendant has caused

27

loss to Plaintiffs and Class Members in an amount to be proven at trial. Plaintiffs

28

and Class Members are also entitled to recover their reasonable attorneys’ fees
Amended/Consolidated
Class Action Complaint

12

Case No. 2:10-cv-01256-GW-JCG

1

pursuant to California Penal Code section 502(e).

2
3

71.

Plaintiffs and the Class Members seek compensatory damages, in an

amount to be proven at trial, and injunctive or other equitable relief.

4

72.

Plaintiffs and Class Members have suffered irreparable and incalcu-

5

lable harm and injuries from Defendant’s violations. The harm will continue un-

6

less Defendant is enjoined from further violations of this section. Plaintiffs and

7

Class Members have no adequate remedy at law.

8

73.

Plaintiffs and the Class Members are entitled to punitive or exem-

9

plary damages pursuant to Cal. Penal Code section 502(e)(4) because Defen-

10

dant’s violation were willful and, on information and belief, Defendant is guilty

11

of oppression, fraud, or malice as defined in Cal. Civil Code section 3294.

12

74.

Defendant’s unlawful access to Plaintiffs’ and Class Members’

13

computers and electronic communications has caused them irreparable injury.

14

Unless restrained and enjoined, Defendant will continue to commit such acts.

15

Plaintiffs and Class Members’ remedy at law is not adequate to compensate it for

16

these inflicted and threatened injuries, entitling Plaintiffs and Class Members to

17

remedies including injunctive relief as provided by California Penal Code section

18

502(e).

19

COUNT III

20

VIOLATION OF THE INVASION OF PRIVACY ACT

21

CALIFORNIA PENAL CODE § 630, et seq.
75.

22
23

Plaintiffs here incorporate and reallege all allegations set out in

paragraphs 1 through 74, above.
76.

24

Plaintiffs and Class Members did not consent to Defendant’s actions

25

in intercepting, reading, and/or learning the contents of their online communica-

26

tions.

27
28

77.

Plaintiffs and Class Members did not consent to any of the Defen-

dant’s actions in using the contents of its communications with such CaliforniaAmended/Consolidated
Class Action Complaint

13

Case No. 2:10-cv-01256-GW-JCG

1

based entities.

2

78.

Defendant perpetrated, caused, and or directly participated in the in-

3

terception, reading, and/or learning the contents of the communications between

4

Plaintiffs, Class Members and California-based web entities.

5

79.

Plaintiffs and Class Members have additionally suffered loss by rea-

6

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

7

vacy.

8

80.

Unless restrained and enjoined, Defendant will continue to commit

9

such acts. Pursuant to Section 637.2 of the California Penal Code, Plaintiffs and

10

the Class have been injured by the violations of California Penal Code section

11

631. Wherefore, Plaintiffs, on behalf of themselves and on behalf of a similarly

12

situated Class of consumers, seek damages and injunctive relief.

13

COUNT IV

14

VIOLATION OF THE CONSUMER LEGAL REMEDIES ACT (“CLRA”)

15

CALIFORNIA CIVIL CODE § 1750, et seq.

16
17
18

81.

Plaintiffs here incorporate and reallege all allegations set out in

paragraphs 1 through 80, above.
82.

In violation of Civil Code section 1750, et seq. (the “CLRA”), De-

19

fendant has engaged and is engaging in unfair and deceptive acts and practices in

20

the course of transactions with Plaintiffs, and such transactions are intended to

21

and have resulted in the sales of services to consumers. Plaintiffs and the Class

22

Members are “consumers” as that term is used in the CLRA because they sought

23

or acquired Defendant’s good or services for personal, family, or household pur-

24

poses. Defendant’s past and ongoing acts and practices include but are not lim-

25

ited to Defendant’s representation that is goods or services were of s particular

26

standard, quality, and grade when in fact, they were of another; in particular, De-

27

fendant’s activities as an online ad-delivery company constituted its representa-

28

tion that it utilized accepted methods of communicating with users and retaining
Amended/Consolidated
Class Action Complaint

14

Case No. 2:10-cv-01256-GW-JCG

1

information about them, that is, HTTP cookies, and regarding which users have a

2

certain measure of control but when, in fact, Defendant was utilizing Flash LSOs

3

as tracking devices for purposes of circumventing users’ controls.,

4

83.

Representing that goods or services are of a particular standard,

5

quality, or Defendant’s violations of Civil Code § 1770 have caused damage to

6

Plaintiffs and the other Class Members and threaten additional injury if the viola-

7

tions continue. This damage includes the losses set forth above.

8

84.

Plaintiffs assert that their first complaint filings constituted fulfill-

9

ment of their notification burden under section 1782 and that Defendant has not

10

adequately responded within the required 30 days, and Plaintiffs therefore re-

11

quest all relief to which they are justly entitled under Civil Code, Section 1780,

12

in an amount to be determined at trial.

13

COUNT V

14

VIOLATION OF THE UNFAIR COMPETITION LAW (“UCL”)

15

CALIFORNIA BUSINESS AND PROFESSIONS CODE § 17200, et seq.

16
17

85.

Plaintiffs here incorporate and reallege the allegations set out in

paragraphs 1 through 84, above.
a.

18

Defendant’s actions described above, including False Adver-

19

tising, are in violation of California Business and Professions Code section

20

17500, et seq. and violations of the right of privacy enshrined in Article I, Sec-

21

tion 1 of the Constitution of the State of California.

22

86.

By engaging in the above-described acts and practices, Defendant

23

has committed one or more acts of unfair competition within the meaning of the

24

UCL and, as a result, Plaintiffs and the Class have suffered injury-in-fact and

25

have lost money and/or property—specifically, personal information and the full

26

value of their computers.

27
28

87.

Defendant’s business acts and practices are unlawful, in part, be-

cause they violate California Business and Professions Code § 17500, et seq.,
Amended/Consolidated
Class Action Complaint

15

Case No. 2:10-cv-01256-GW-JCG

1

which prohibits false advertising, in that they were untrue and misleading state-

2

ments relating to Defendant’s performance of services and with the intent to in-

3

duce consumers to enter into obligations relating to such services, and regarding

4

statements Defendant knew were false or by the exercise of reasonable care De-

5

fendant should have known to be untrue and misleading.

6

88.

Defendant’s business acts and practices are also unlawful in that

7

they violate the California Consumer Legal Remedies Act, California Civil

8

Code, Sections 1647, et seq., 1750, et seq., and 3344, California Penal Code, sec-

9

tion 502, and Title 18, United States Code, Section 1030. Defendant is therefore

10
11

in violation of the “unlawful” prong of the UCL.
89.

Defendant’s business acts and practices are unfair because they

12

cause harm and injury-in-fact to Plaintiffs and Class Members and for which De-

13

fendant has no justification other than to increase, beyond what Defendant would

14

have otherwise realized, its profit in fees from advertisers and its information as-

15

sets through the acquisition of consumers’ personal information. Defendant’s

16

conduct lacks reasonable and legitimate justification in that Defendant has bene-

17

fited from such conduct and practices while Plaintiffs and the Class Members

18

have been misled as to the nature and integrity of Defendant’s services and have,

19

in fact, suffered material disadvantage regarding their interests in the privacy and

20

confidentiality of their personal information. Defendant’s conduct offends public

21

policy in California tethered to the Consumer Legal Remedies Act, the right of

22

privacy set forth in the Constitution of the State of California, and California

23

statutes recognizing the need for consumers to obtain material information with

24

which they can take steps to safeguard their privacy interests, including Califor-

25

nia Civil Code, Section 1798.80.

26

90.

In addition, Defendant’s modus operandi constituted a sharp prac-

27

tice in that Defendant knew or should have known that consumers care about the

28

status of personal information and its privacy but were unlikely to be aware of
Amended/Consolidated
Class Action Complaint

16

Case No. 2:10-cv-01256-GW-JCG

1

the manner in which Defendant failed to fulfill its obligation to observe consum-

2

ers’ privacy expressed in their browser settings. Defendant is therefore in viola-

3

tion of the “unfair” prong of the UCL.

4

91.

Defendant’s acts and practices were fraudulent within the meaning

5

of the UCL because they are likely to mislead the members of the public to

6

whom they were directed.

7
8
9

92.

As a result, Plaintiffs and the Class have suffered and will continue

to suffer damages.
93.

Further, as a direct and proximate result of Defendant’s willful and

10

intentional actions, Plaintiffs and the Class have suffered damages in an amount

11

to be determined at trial and, unless Defendant is restrained, Plaintiffs will con-

12

tinue to suffer damages.

13

COUNT VI

14

TRESPASS TO PERSONAL PROPERTY AND CHATTELS

15
16
17

94.

Plaintiffs here incorporate and reallege all allegations set out in

paragraphs 1 through 93, above.
95.

The common law prohibits the intentional intermeddling with per-

18

sonal property, including a computer, in possession of another that results in the

19

deprivation of the use of the personal property or impairment of the condition,

20

quality, or usefulness of the personal property.

21

96.

By engaging in the acts alleged in this complaint without the

22

authorization or consent of Plaintiffs and Class Members, Defendant dispos-

23

sessed Plaintiffs and Class Members from use and/or access to their computers,

24

or parts of them. Further, these acts impaired the use, value, and quality of Plain-

25

tiffs and Class Members’ computers. Defendant’s acts constituted an intentional

26

interference with the use and enjoyment of the computers. By the acts described

27

above, Defendant repeatedly and persistently engaged in trespass to personal

28

property in violation of the common law.
Amended/Consolidated
Class Action Complaint

17

Case No. 2:10-cv-01256-GW-JCG

97.

1

Without Plaintiffs and Class Members’ consent, or in excess of any

2

consent given, Defendant knowingly and intentionally accessed Plaintiffs’ and

3

Class Members’ property, thereby intermeddling with Plaintiffs’ and Class

4

Members’ right to possession of the property and causing injury to Plaintiffs and

5

the members of the Class.

6
7

98.

Defendant engaged in deception and concealment to gain access to

Plaintiffs and Class Members’ computers.

8

a) Defendant engaged in the following conduct with respect to

9

Plaintiffs and Class Members’ computers: Defendant accessed

10

and obtained control over computers; Defendant caused the in-

11

stallation of code on the hard drives of the computers; Defendant

12

programmed the operation of its code to circumvent the com-

13

puter owners’ privacy and security controls, to remain beyond

14

their control, and to continue function and operate without notice

15

to them or consent from them.

16

99.

All these acts described above were acts in excess of any authority

17

any user granted when visiting websites and none of these acts was in further-

18

ance of users’ viewing the content or utilizing services on websites. By engaging

19

in deception and misrepresentation, whatever authority or permission Plaintiffs

20

and Class Members may have granted to the Defendant did not apply to Defen-

21

dant’s conduct.

22

100. Defendant’s installation and operation of its program used, inter-

23

fered, and/or intermeddled with Plaintiffs’ and Class Members’ computer sys-

24

tems. Such use, interference and/or intermeddling was without Class Members’

25

consent or, in the alternative, in excess of Plaintiffs’ and Class Members’ con-

26

sent.

27

101. Defendant’s installation and operation of its program constitutes

28
Amended/Consolidated
Class Action Complaint

18

Case No. 2:10-cv-01256-GW-JCG

1

trespass, nuisance, and an interference with Class Members’ chattels, to wit, their

2

computers.

3
4
5
6

102. Defendant’s installation and operation of its program impaired the
condition and value of Class Members’ computers.
103. Defendant trespass to chattels, nuisance, and interference caused
real and substantial damage to Plaintiffs and Class Members.

7

104. As a direct and proximate result of Defendant’s trespass to chattels,

8

nuisance, interference, unauthorized access of and intermeddling with Plaintiffs

9

and Class Members’ property, Defendant has injured and impaired in the condi-

10
11

tion and value of Class Members' computers, as follows:
a.

by consuming the resources of and/or degrading the

12

performance of Plaintiffs’ and Class Members’ computers (including hard drive

13

space, memory, processing cycles, and Internet connectivity);

14
15
16
17

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;

18

d.

19

Class Members’ computers;

20

e.

21
22

by altering and controlling the functioning of Plaintiffs’ and
by infringing on Plaintiffs’ and Class Members’ right to

exclude others from their computers;
f.

by infringing on Plaintiffs’ and Class Members’ right to

23

determine, as owners of their computers, which programs should be installed and

24

operating on their computers;

25
26
27
28

g.

by compromising the integrity, security, and ownership of

Class Members’ computers; and
h.

by forcing Plaintiffs’ and Class Members’ to expend money,

Amended/Consolidated
Class Action Complaint

19

Case No. 2:10-cv-01256-GW-JCG

1

time, and resources in order to remove the program installed on their computers

2

without notice or consent.

3

COUNT VII

4

UNJUST ENRICHMENT

5
6

105. Plaintiffs here incorporate and reallege all allegations set out in
paragraphs 1 through 104, above.

7

106. A benefit has been conferred upon Defendant by Plaintiffs and the

8

Class; on information and belief, Defendant, directly or indirectly, has received

9

and retains information regarding online communications and activities of Plain-

10

tiffs, and Defendant has received and retain information regarding specific pur-

11

chase and transactional information that is otherwise private, confidential, and

12

not of public record, and/or have received revenue from the provision of such in-

13

formation.

14

107. Defendant appreciates or has knowledge of said benefit.

15

108. Under principles of equity and good conscience, Defendant should

16

not be permitted to retain the information and/or revenue it acquired through its

17

unlawful conduct; all funds, revenues, and benefits Defendant has unjustly re-

18

ceived as a result of its actions rightfully belong to Plaintiffs and the Class.
PRAYER FOR RELIEF

19
20
21
22

WHEREFORE, Plaintiffs, on behalf of themselves and all others similarly
situated, pray for judgment against Defendant as follows:
1.

Certify this case as a Class action on behalf of the Class defined

23

above, appoint Plaintiffs as Class representatives, and appoint their counsel as

24

Class counsel;

25

2.

26

Declare that the actions of Defendant, as set out above, violate the

following:

27

a. Computer Fraud and Abuse Act, 18 U.S.C. § 1030;

28

b. California’s Computer Crime Law, Penal Code § 502;
Amended/Consolidated
Class Action Complaint

20

Case No. 2:10-cv-01256-GW-JCG

c. California’s Invasion Of Privacy Act, California Penal Code

1

§ 630;

2

d. California’s Consumer Legal Remedies Act, Civil Code

3

§ 1750;

4

e. California’s Unfair Competition Law, Business and

5

Professions Code § 17200;

6
7

f. Trespass to Personal Property/Chattels;

8

g. Unjust Enrichment

9

3.

As applicable to the Classes mutatis mutandis, awarding injunctive

10

and equitable relief including, inter alia: (i) prohibiting Defendant from engaging

11

in the acts alleged above; (ii) requiring Defendant to disgorge all of its ill-gotten

12

gains to Plaintiffs and the other Class Members, or to whomever the Court deems

13

appropriate; (iii) requiring Defendant to delete all data surreptitiously or

14

otherwise collected through the acts alleged above; (iv) requiring Defendant to

15

provide Plaintiffs and the other Class Members a means to easily and

16

permanently decline any participation in any data collection activities; (v)

17
18
19
20
21
22
23
24
25
26
27
28

awarding Plaintiffs and Class Members full restitution of all benefits wrongfully
acquired by Defendant by means of the wrongful conduct alleged herein; and (vi)
ordering an accounting and constructive trust imposed on the data, funds, or
other assets obtained by unlawful means as alleged above, to avoid dissipation,
fraudulent transfers, and/or concealment of such assets by Defendant;
4.

Award damages, including statutory damages where applicable, to

Plaintiffs and Class Members in an amount to be determined at trial;
5.

Award restitution against Defendant for all money to which

Plaintiffs and the Classes are entitled in equity;
6.

Restrain Defendant, its officers, agents, servants, employees, and

attorneys, and those in active concert or participation with them from continued
access, collection, and transmission of Plaintiffs and Class Members’ personal
Amended/Consolidated
Class Action Complaint

21

Case No. 2:10-cv-01256-GW-JCG

1
2

information via preliminary and permanent injunction;
7.

Award Plaintiffs and the Class Members:

3

a. their reasonable litigation expenses and attorneys’ fees;

4

b. pre- and post-judgment interest, to the extent allowable;

5

c. restitution, disgorgement and/or other equitable relief as the
Court deems proper;

6

d. compensatory damages sustained by Plaintiffs and all others

7
8

similarly situated as a result of Defendant’s unlawful acts and

9

conduct;

10

e. statutory damages, including punitive damages;

11

f. permanent injunction prohibiting Defendant from engaging in
the conduct and practices complained of herein;

12
13
14

8.

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

proper.

15
16
17
18
19
20
21
22
23
24
25
26
27
28
Amended/Consolidated
Class Action Complaint

22

Case No. 2:10-cv-01256-GW-JCG

1

Respectfully, submitted

2

DATED: January 12, 2011

KAMBERLAW, LLC

3
4
5

Scott A. Kamber
[e-mail]
David A. Stampley
[e-mail]
KamberLaw, LLC
100 Wall Street, 23rd Floor
New York, New York 10005
Telephone: [phone]
Facsimile: [phone]

6
7
8
9
10
11

Interim Counsel for the Class

12
13
14
15
16
17
18
19
20
21

Avi Kreitenberg (SBN 266571)
[e-mail]
KamberLaw, LLP
1180 South Beverly Drive, Suite 601
Los Angeles, California 90035
Telephone: [phone]
Facsimile: [phone]
Joseph H. Malley (pro hac vice)
[e-mail]
Law Office of Joseph H. Malley
1045 North Zang Blvd Dallas, TX 75208
Telephone: [phone]

22
23
24
25
26
27
28
Amended/Consolidated
Class Action Complaint

23

Case No. 2:10-cv-01256-GW-JCG

1
2

JURY TRIAL DEMAND
Plaintiffs hereby demand a trial by jury of all issues so triable.

3

Respectfully, submitted

4

DATED: January 12, 2011

KAMBERLAW, LLC

5
6

12

Scott A. Kamber
[e-mail]
David A. Stampley
[e-mail]
KamberLaw, LLC
100 Wall Street, 23rd Floor
New York, New York 10005
Telephone: [phone]
Facsimile: [phone]

13

Interim Counsel for the Class

7
8
9
10
11

14
15
16
17
18
19
20
21
22
23

Avi Kreitenberg (SBN 266571)
[e-mail]
KamberLaw, LLP
1180 South Beverly Drive, Suite 601
Los Angeles, California 90035
Telephone: [phone]
Facsimile: [phone]
Joseph H. Malley (pro hac vice)
[e-mail]
Law Office of Joseph H. Malley
1045 North Zang Blvd Dallas, TX 75208
Telephone: [phone]

24
25
26
27
28
Amended/Consolidated
Class Action Complaint
Jury Trial Demand

Case No. 2:10-cv-01256-GW-JCG