Elvey v. TD Ameritrade, Inc.

Filing 11

Elvey v. TD Ameritrade, Inc.

Doc. 11 Att. 1

Case 3:07-cv-02852-MJJ

Document 11-2

Filed 07/10/2007

Page 1 of 3

1 Alan Himmelfarb LAW OFFICES OF ALAN HIMMELFARB 2 2757 Leonis Blvd Los Angeles, CA 90058 3 Telephone: [phone] Fax: [phone] [e-mail] 5 Scott A. Kamber Ethan Preston 6 KAMBER & ASSOCIATES, LLC 11 Broadway, 22d Floor 7 New York, NY 10004 Telephone: [phone] Fax: [phone] [e-mail] 9 [e-mail] 10 11 12 13 Counsel for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION No. C 07 2852 MJJ Judge Martin J. Jenkins DECLARATION OF MATTHEW ELVEY IN SUPPORT OF PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION

MATTHEW ELVEY, an individual, and 14 GADGETWIZ, INC., an Arizona corporation, on their own behalf and on behalf of all 15 others similarly situated, 16 17 v. Plaintiffs

18 TD AMERITRADE, INC., a New York corporation, and DOES 1 to 100, 19 Defendants. 20 21 22 23 24 25 26 27 28
Declaration of Matthew Elvey in Support of Motion for Preliminary Injunction and Class Certification

No. C 07 2852 MJJ

Dockets.Justia.com

Case 3:07-cv-02852-MJJ

Document 11-2

Filed 07/10/2007

Page 2 of 3

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

Pursuant to 28 U.S.C.§ 1746, I, Matthew Elvey, hereby declare and state as follows: 1. I am over the age of eighteen and am fully competent to make this declaration. I make this declaration based upon personal knowledge. I was an accountholder at TD Waterhouse when TD Waterhouse and Ameritrade merged into TD AMERITRADE, Inc. on April 24, 2006. I have been an accountholder at TD AMERITRADE, Inc. since that merger. 2. I have provided TD AMERITRADE, Inc. certain email addresses which I never disclosed to any other person (except my counsel). I am not aware of any way that any third party could have obtained these email addresses except from TD AMERITRADE, Inc. 3. I have received spam at these email addresses. Exhibit A to the Motion for Preliminary Injunction and Class Certification is a true and correct copy of a sample of the spam I received at these email addresses, except that my counsel has altered the spam source code to redact the email addresses I provided to TD AMERITRADE, Inc. This was done to preserve the confidentiality and uniqueness of these email addresses. 4. An unknown individual used my name and Social Security number to open a wireless account with T-Mobile and incurred $517.45 in charges in December 2005. An unknown individual also used my name and Social Security number to open a wireless account with Sprint PCS and incurred $2,409 in charges in January 2006. (These accounts were opened with the same mailing address.) I discovered the Sprint charge and reported it to the police in January 2007. I discovered the T-Mobile charge in March 2007. I caused the entry for the Sprint PCS account to be removed from my credit report; the T-Mobile account was never entered on my credit report. I spent approximately 50 hours remedying these events. 5. I could not afford to post a bond of more than a $1,000 for the injunction sought in the Motion.
Declaration of Matthew Elvey in Support of 2 Motion for Preliminary Injunction and Class Certification No. C 07 2852 MJJ

Case 3:07-cv-02852-MJJ

Document 11-2

Filed 07/10/2007

Page 3 of 3

1 2 3 4

6.

I am an IT consultant. I set up networks, design and maintain network infrastructure, and manage IT security and databases.

7.

I declare under penalty of perjury, that the foregoing is true and correct.

Pursuant to Section X of the Northern District of California's General Order No. 45 on 5 electronic case filing and 28 U.S.C.§ 1746, in lieu of Matthew Elvey's signature on this declaration, Alan Himmelfarb attests that Matthew Elvey is the signatory of this declaration, 6 and that Matthew Elvey concurred to this declaration on July 10, 2007. 7 DATE: July 10, 2007 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Declaration of Matthew Elvey in Support of 3 Motion for Preliminary Injunction and Class Certification No. C 07 2852 MJJ

/s/Alan Himmelfarb ALAN HIMMELFARB