Elvey v. TD Ameritrade, Inc.

Filing 12

Elvey v. TD Ameritrade, Inc.

Doc. 12

Case 3:07-cv-02852-MJJ

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Filed 07/11/2007

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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 NOTICE OF LODGING PROPOSED ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION Date: August 14, 2007 Time: 9:30 a.m. Location: Courtroom 11, 19th Floor 450 Golden Gate Ave. San Francisco, CA 94102

MATTHEW ELVEY, an individual, and 14 GADGETWIZ, INC., an Arizona corporation, on their own behalf and on behalf of all others 15 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
Notice of Lodging Proposed Order Granting Motion for Preliminary Injunction and Class Certification

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NOTICE OF LODGING Pursuant to General Order No. 45(VIII), Plaintiffs lodged with the Court the order below by emailing a plain text /ACSII (.txt) version of the order below to "[e-mail]." See also U.S. District Court for the Northern District of California, How do I...? / Where do I...?, at https://ecf.cand.uscourts.gov/cand/faq/how_do_i/how_do_i.htm (last updated Jun. 6, 2007). Dated: July 11, 2007 By:/s/Alan Himmelfarb Alan Himmelfarb LAW OFFICES OF ALAN HIMMELFARB 2757 Leonis Blvd Los Angeles, CA 90058 Telephone: [phone] Fax: [phone] [e-mail] Scott A. Kamber Ethan Preston KAMBER & ASSOCIATES, LLC 11 Broadway, 22d Floor New York, NY 10004 Telephone: [phone] Fax: [phone] [e-mail] [e-mail]

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION No. C 07 2852 MJJ Judge Martin J. Jenkins [PROPOSED] ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION AND CLASS CERTIFICATION

3 MATTHEW ELVEY, an individual, and GADGETWIZ, INC., an Arizona corporation, 4 on their own behalf and on behalf of all others similarly situated, 5 Plaintiffs 6 v. 7 TD AMERITRADE, INC., a New York 8 corporation, and DOES 1 to 100, 9 10 11 Defendants.

Plaintiffs' Motion for Preliminary Injunction and Class Certification came on for hearing

12 before this Court on August 14, 2007 before the Honorable Martin Jenkins, United States 13 District Court, San Francisco, California, with all parties having appeared through counsel. 14 The Court having reviewed the Motion, and after consideration of the opposition and 15 reply papers, arguments of counsel, and all other matters presented to the Court, the Court finds 16 that it should grant the Order for Plaintiffs and against Defendant TD AMERITRADE, Inc. that: 17 18 19 20 21 22 23 24 25 26 27 28 4. 3. 2. 1. This action is certified as a class action under Rule 23(b)(2) and Rule 23(c)(4) to the extent necessary for the preliminary injunction sought herein, and Plaintiffs are designated as representatives of a Class of persons or entities that 1) own or contract domain names, 2) provide email services to those domain names, and 3) received spam sent to TD AMERITRADE, Inc.'s accountholders ("CAN SPAM Class"), and Kamber & Associates, LLC are designated as the counsel for the CAN SPAM Class. TD AMERITRADE, Inc. shall immediately cease and desist communications that instruct, direct, or suggest to any accountholder that such accountholder destroy copies of spam which promotes stocks (and shall prevent any employee or agent from doing the same). This action is certified as a class action under Rule 23(b)(2) and Rule 23(c)(4) to the extent necessary for the preliminary injunction sought herein, and Plaintiff Matthew Elvey is designated as a representative of a Class of those TD AMERITRADE, Inc. accountholders whose mailing address is in California ("California Resident Class"), and Kamber & Associates, LLC as designated as counsel for the California Resident Class. TD AMERITRADE, Inc. shall immediately cease and desist disclosing the personal information (including email addresses) of California Resident Class members to third parties in a manner inconsistent with its February 2007 Privacy Statement (and shall prevent any employee or agent from doing the same).
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5.

TD AMERITRADE, Inc. shall take reasonable measures to detect spam sent to its California Resident Class members and to identify stocks touted by such spam, and to report to the Court and to Plaintiffs' counsel on the implementation of such measures within 14 days of the date of this Order. The Court retains jurisdiction over this matter and may revisit such measures for time to time, as it deems appropriate. TD AMERITRADE, Inc. shall, within 7 days of the date of this Order, display the following disclosure to California Resident Class members who attempt to purchase a stock which has been touted by spam: ALERT: THIS STOCK SHOULD BE PURCHASED ONLY WITH EXTREME CAUTION. THIS STOCK HAS RECENTLY BEEN TOUTED IN UNSOLICITED COMMERCIAL EMAIL. IT IS LIKELY THAT THE PERSONS SENDING THESE EMAILS ARE MANIPULATING THE VALUE OF THIS STOCK AS PART OF A FRAUDULENT INVESTMENT SCHEME. THIS SCHEME MAY CAUSE ANY INVESTMENT IN THIS STOCK TO LOSE ITS VALUE, NOTWITHSTANDING THE COMPANY'S FINANCIAL PERFORMANCE. TD AMERITRADE, Inc. shall prohibit the purchase of such a stock by California Resident Class members unless and until the purchaser affirmatively indicates that the purchaser has read this warning.

6.

7.

TD AMERITRADE, Inc. shall provide Plaintiff Matthew Elvey and his counsel with an accounting of each of its records systems which store personal information of any members of the California Resident Class. The accounting shall begin within 7 days of the date of this Order. The Court retains jurisdiction over this matter and may revisit such measures for time to time, as it deems appropriate. TD AMERITRADE, Inc. shall take those measures to protect the security of California Resident Class members' personal information which are identified and proposed by Plaintiffs' counsel, and approved by the Court upon completion of the accounting. Alternatively, TD AMERITRADE, Inc. may opt to destroy California Resident Class members' personal information and refrain from collecting any more personal information from California residents.

8.

TD AMERITRADE, Inc. shall, within 7 days of the date of this Order, prominently disclose in its Privacy Statement and in an email or individual mailing to the California Resident Class members the following statement: ALERT: AMERITRADE'S INFORMATION SYSTEMS ARE NOT NECESSARILY SECURE AND WE CANNOT ASSURE THE SECURITY OF YOUR PERSONAL INFORMATION. THERE IS EVIDENCE THAT ACCOUNTHOLDERS' EMAIL ADDRESSES HAVE BEEN EXPOSED TO UNAUTHORIZED THIRD PARTIES. AMERITRADE HAS AN ONGOING INVESTIGATION INTO THIS SITUATION. YOUR NAME, SOCIAL SECURITY NUMBER, AND YOUR EMAIL ADDRESS MAY HAVE BEEN EXPOSED AS WELL. We recommend that you place a fraud alert on your credit file. A

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fraud alert tells creditors to contact you before they open any new accounts or change your existing accounts. Call any one of the three major credit bureaus. As soon as one credit bureau confirms your fraud alert, the others are notified to place fraud alerts. All three credit reports will be sent to you, free of charge, for your review. You can contact Equifax (800-685-1111), Experian (888397-3742), or TransUnionCorp (800-680-7289). Even if you do not find any suspicious activity on your initial credit reports, the Federal Trade Commission (FTC) recommends that you check your credit reports periodically. Victim information sometimes is held for use or shared among a group of thieves at different times. Checking your credit reports periodically can help you spot problems and address them quickly. If you find suspicious activity on your credit reports or have reason to believe your information is being misused, call [insert contact information for law enforcement] and file a police report. Get a copy of the report; many creditors want the information it contains to absolve you of the fraudulent debts. You also should file a complaint with the FTC at www.consumer.gov/idtheft or at 1-877-ID-THEFT (877-438-4338). Your complaint will be added to the FTC's Identity Theft Data Clearinghouse, where it will be accessible to law enforcers for their investigations. You can obtain a copy of Take Charge: Fighting Back Against Identity Theft, a comprehensive guide from the FTC to help you guard against and deal with identity theft at: http://www.ftc.gov/bcp/edu/pubs/consumer/idtheft/idt04.htm and to further publish to current and former accountholders a report to be drafted by Plaintiffs' counsel and approved by the Court upon completion of the accounting in Paragraph 7. Pursuant to Fed. R. Civ. P. 65(c), Plaintiff Matthew Elvey shall post no bond for this Order.

Hon. Martin Jenkins United States District Judge

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