Sams v. Yahoo! Inc.

Filing 1

NOTICE OF REMOVAL with COMPLAINT filed by Yahoo! Inc.. Consent form to proceed before U.S. Magistrate and pretrial instructions provided. (Filing fee $ 350 receipt number 29568) (Attachments: # 1 Exhibit A - Complaint, # 2 Notice of Filing, # 3 Civil Cover Sheet)(ank) Please visit our website at http://www.gand.uscourts.gov to obtain Pretrial Instructions.

Sams v. Yahoo! Inc.

Doc. 1 Att. 1

E hibit Ex

Dockets.Justia.com

Date F11ed 09/28/2010 filSuperior , MM-D D -v D State Docket # _e2_-' D I U C Vt Plaintiff(s) Sams Fayelynn Defendant(s) Yahoo! Inc .

Court

General Civil Case Filing Information Form (Non-Domestic) L= II ED IN
County Fulton ~
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I f Tort is Case Type :
D Auto Accident D Premises Liability D Medical Malpractice

(Check no more than T WO )

O Other Professional Negligence p Product Liability D Other specify

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D Habeas Corpu s D Appeals, Reviews ~ Post Judgment Garnishment, Attac hm ent, or Other Relief D Non-Domestic Cont emp t O Tort ( i ftori , till i n right column) V Other General Civ il S pecify C l ass Action

A re P u n i tive Damages Pl ead ed? 9 Y es D No 11

CT Corporation
TO-

Service of Proce ss Trans mittal 09/29/2010
CT Log Number 517365163

Cecili a Yoshida, Legal Ops Manager Yahoo ! Inc . 701 First Avenue Sunnyvale, CA 94089 P rocess Served in Georgia
Ya h oo! I nc . ( Dome st ic St ate : D E)

RE :
FOR:

ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS : TITLE O F ACTION : Fayelynn Sams, individually, and on behalf of a class of all others similarly situated,

Pltfs. vs . Yahoo! Inc ., Dft .

DOCU MENT(S) SE RVED: COURTIAG E N CY: NATU R E OF ACTION : ON WHOM PROCESS WAS SE RVE D: DATE AND HOUR O F SE RVI CE: APPE ARANCE OR AN SW ER DUE: ATTORNEY(S) I SENDE R (S) :

Summons, Complaint, Exhibit Fulton County Superior Court, GA Case # 201 OCV 1 91482 Class Action - Breach of Contract - Breach of Implied duty of good faith and for dealing . Violations of the Stored Communications Act and the federal Wiretap Act, C T Corporation System, Atlanta, GA By Process Server on 09/29/2010 at 15 :45 Within 30 days after service, exclusive of the day of service

Joshua A. Millican

Law Offices of Joshua A . Mitlitan, P.C . 44 Broad Street NW Suite 607 Atlanta, GA 30303 404-522-1152 CT has retained the current log, Retain Date : 09/30/2010, expected Purge Date : 1 0/05/20 1 0 Image SOP Email Notification, Cecilia Yoshida cyoshida@yahoo-inc .com

ACTION ITEMS :

SIGNED ; PER: ADDRESS . TELEPHONE :

C T Corporation System Terenc e Hardley 1201 Peacht r ee Street, N . E . A tlan ta, GA 3 036 1 404-965-3840

Page 1 of i / SE
Informatio n displayed on this t ransmittal is for CT C orporati on 's reco rd keepi ng purposes only and is provided to the re c ipi ent fo r quick refe rence. This information does not c onstitute a lega l opinion as to the nature of act ion , the amount of damages, the answe r date , or any information contained in the documents themselves: Recipient is responsib le for interpr eti ng said documents and fo r taking appropr iate acti on . Signatures on certifi ed mail rec eipts confirm receipt of package only, not co ntents .

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

FAYELYNN SAMS, Individually, and on behalf of a class of all others similarly situated, Plaintiffs,
V5 .

Civil Action File No . : 20

I~CV')qlqU

YAHOO! INC ., Defendant,

SUMMONS T O THE ABOVE NAMED DEFENDANT : You are hereby summoned and required to file with the Clerk of said court and serve upon the Plaintiff's attorney, whose name and address is : Joshua A . Millican Law Office of Joshua A . Millican, P .C . 44 Broad Street NW, Suite 607 Atlanta, Georgia 30303 an answer to the complaint which is herewith served upon you, within 30 days after the service of this summons upon you, exclusive of the day of service . If you fail to do so, judgment by default will be taken against you for the relief demanded in the complaint . This 'A day of J .J , 2010

Clerk o perior Court By

Deputy Clerk

IN THE SUPERIOR COURT OF FULTON COUNTY STATE OF GEORGIA

DtA

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SEP 2 S 2 01 0

FAYELYNN SAMS, Individually, and on behalf of a class of all others similarly situated, Plaintiffs,
vs .

C i vil Action File No . :

9- 1 C-09

ap

j y~2

CLASS ACTION COMPLAINT DEMAND FOR JURY TRIAL

YAHOO! INC ., Defendant,

COMPLA I NT - CLASS ACTION Plaintiff Fayelynn Sams ("Plaintiff), on behalf of herself individually and a class of all others similarly situated, brings this action against Yahoo! Inc . ("Yahoo!" or "Defendant") for violations of the Stored Communications Act, 18 U .S .C . § 2701 et seq. ("SCA") and the federal Wiretap Act, 18 U.S. C . § 2510 et seq. PRELIMINARY STATEMENT 1 . This is a class action lawsuit, brought by, and on behalf of, a nationwide class of individuals whose privacy rights were violated by Yahoo!'s willful violations of the SCA and Wiretap Act and their prohibitions against voluntary disclosure of personal and private data and information of users of Yahoo! products and services (hereinafter "Yahoo! User") . 2. Yahoo! disclosed personal and private data regarding Yahoo! Users to law

enforcement and other government entities without the users' knowledge or authorization and without proper compliance with the compelled disclosure provisions of the SCA and Wiretap

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Act . The, impermissibly disclosed personal and private data included some or all of the following : name, address, phone number, birth date, gender, social security number, date account created, account status, Yahoo! email address, alternate email address, the content of email communications, registration from Internet Protocol (IP), date IP registered, login IP addresses and other IP address information. 3. Yahoo!'s unlawful disclosure of personal and private user data violates Yahoo!

Users' rights under the SCA, the federal Wiretap Act and constitutes a breach of contract . 4 . Plaintiff seeks monetary damages, including statutory damages, punitive damages, equitable relief, attorneys' fees and expenses of litigation on behalf of herself and members of the class . PARTIES, JURISDICTION AND VENUE 5. Plaintiff Fayelynn Sams is a resident of the State of Georg i a and a Yahoo!

Internet User . On or about December 2, 2008, Plaintiff had her personal and private user information and data disclosed by Yahoo! to law enforcement and other government entities without proper compliance with the compelled disclosure provisions of the SCA and Wiretap Act . 6. Defendant Yahoo! Inc . is a Delaware corporation that does business and operates

in the State of Georgia. Yahoo! Inc. may be properly served through its registered agent of service, CT Corporation System at 1201 Peachtree Street NE in Atlanta, Georgia 30361 .

7. Defendant Yahoo! Inc . is subject to the jurisdiction of teas Court and venue is
proper.

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8 . This Court has subject matter jurisdiction over this action and venue is proper . STATEMENT OF FACTS 9 . Yahoo! Inc . is a global Internet business and consumer services company that offers a comprehensive branded network of properties and services, many of which are free, to more than 500 million unique users worldwide . Currently, Yahoo! has about 230 million registered users and attracts hundreds of millions of users every month through its innovative technology and engaging content and services, making it one of the most visited Internet destinat ions . and a world-class online med ia company . 10, The SCA is sometimes referred to as the Electronic Communications Privacy Act .

The SCA was included as Title II of the Electronic Communications Privacy Act of 1986 ("ECPA"), but the ECPA itself also included amendments to the Wiretap Act . 11 . These federal laws sets forth a system of statutory privacy rights for customers and users of internet business and consumer services providers, such as Yahoo! . 12 . The Yahoo! Pr i vacy Policy attached hereto as Exhibit A and incorporated herein

by reference, sets forth the rights of Yahoo!'s Users concerning the collection, protection, use and disclosure of Yahoo! Users' personal and private information and data as required by law and by Yahoo!' s applicable privacy policies . 13 . Yahoo! claims to protect user privacy as required by law and applicable privacy

policies but indicates that it may be required to share personal and private information to respond to subpoenas, court orders, or legal process or as otherwise required by law . 14 . Although Yahoo ! claims to conform with the strict requirements of the applicable

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federal statutes when releasing personal and private user information and data, Yahoo! routine l y and unlawfully accepts as valid legal process from law enforcement and other government entities facsimile transmissions of state grand jury or trial subpoenas, often with express instructions on the face of the state subpoena to not provide notice of the subpoena to the Yahoo! User . 15 . State grand jury or trial subpoenas have no force and effect outside of the state of issuance, and when faxed or sent out of state, said subpoenas are invalid . 16 . Yahoo!'s disclosure of a Yahoo! User's personal and private information and data in response to a state grand jury or trial subpoena is improper, violative of federal privacy laws, and a breach of contract . 17. Although Yahoo! claims to conform with the strict requirements of the applicable

federal statutes when releasing personal and private user information and data, Yahoo! routinely
and unlawfully accepts as valid legal process from law enforcement and other government

entities facsimile transmissions of search warrants signed by state magistrates and other state judges . 18 . Search warrants signed by state magistrates and other state judges have no force and effect outside of the state of issuance, and when faxed or sent out of state, said search warrants are not deemed issued by a court of competent j urisdiction . 19 . Yahoo!'s d isclosure of a Yahoo! User's personal and private information and data in response to a state search warrant is improper, violative of federal privacy laws, and a breach of contract .

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CLASS ACTION ALLEGATIONS 20 . Plaintiff brings this action on behalf of all persons in the United States, who are or were, Yahoo! Users and have had personal and private data or information regarding their Yahoo! accounts made available to law enforcement and other government entities, without proper compliance with the compelled disclosure provisions of the SCA and Wiretap Act and in violation of Yahoo!'s agreement with Yahoo! Users as set forth in the Yahoo! Privacy Policy, at any time from January 1, 2006, to the present (the "Class") . The "Class Period" is from January 1, 2006, to the present. 21 , The members of the Class are so numerous that joinder of all members is

impracticable . Plaintiff believes the Class contains many thousands of members, and the actual number of Class members can be ascertained through discovery and Yahool's computerized and other records. 22 . Common questions of law and fact exist as to all members of the Class and predominate over any questions affecting solely individual members of the Class . The common questions and common issues include, but are not limited to : whether Yahoo! made available to law enforcement and other government entities personal and private data or information regarding the Class and their Yahoo! accounts ; whether Yahoo! made available to law enforcement and other government entities personal and private data or information regarding the Class and their Yahoo! accounts without a valid legal process such as a subpoena, court order, or search warrant ; whether Yahoo! made available to law enforcement and other government entities personal and private data or information regarding the Class and their

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Yahoo! accounts without a valid search warrant ; whether Yahoo! made available to law enforcement and other government entities personal and private data or information regarding the Class and their Yahoo! accounts without a valid subpoena ; whether by committing these acts and omissions Yahoo! violated federal and state laws ; what personal and private data or information was disclosed by Yahoo! to law enforcement and other government entities and how ; and whether class members are entitled to injunctive, declarative and monetary relief as a result of Yahoo!'s conduct . 23 . Plaintiffs claims are typical of the claims of the members of the Class because Plaintiff and the other members of the Class each sustained damages arising out of Yahoo!'s wrongful conduct as complained of herein . Plaintiff is or was an Internet user of Yahoo! who had personal and private data and information regarding her Yahoo! account made available to law enforcement and other government entities without proper comp l iance with the compelled disclosure provisions of the SCA and Wiretap Act . 24 . Plaintiff will fairly and adequately protect the interests of the members of the Class and has retained counsel competent and exper i enced i n class action and complex litigation . Plaintiff has no interests antagonistic to or in conflict with those of the Class . 25 . Class action status in this action is warranted under O .C .G .A. § 9-i 1-23(b ) (1)(B)

because prosecution of separate actions by the members of the Class would create a risk of adjudications with respect to individual members of the Class which would, as a practical matter, be dispositive of the interests of the other members not parties to the actions, or substantially impair or impede their ability to protect their interests .

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26 .

Class action status is also warranted under the - other subsections of O . C . G . A . § 9 -'

I 1-23 ( b) because : (i) prosecution of separate actions by the members of the Class would create a risk of establishing incompatible standards of conduct for Defendants ; (ii) Yahoo! acted or refused to act on grounds generally applicable to the Class, thereby making appropriate final injunctive, declaratory, or other appropriate equitable relief with respect to the Class as a whole ; and (iii) Yahovf has and continues to disclose personal and private data and information to law enforcement and other government entities without the users' knowledge or authorization and without proper compliance with the compelled disclosure provisions of the SCA and Wiretap
Act . Accordingly, declaratory and injunctive relief that prevents Yahoo! from cont i nuing to

make said impermissible disclosures of personal and private data and information to law is appropriate on a class wide basis . 27 . Questions of law or fact common to members of the Class predom i nate over any

questions affecting only individual members of the Class . 28 . A class action is a superior method of adjudicating the Class members' claims because individual actions would, unnecessarily burden the Court and create the risk of inconsistent results . 29 . Given the significant expense required to prosecute the foregoing claims against Yahoo!, the costs of individual actions would exceed or consume the amount recovered in any individual action . The expense of pursuing individual actions will require individual members of the Class to forego their individual claims against Yahoo! if they are not permitted to pursue those claims as a Class .

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30 . Plaintiff is not aware of any litigation concerning this controversy that has already been initiated by or against any members of this Class. 31 . Plainti ff anti cipates no extraordinary or unusual difficulty in the management of

this litigation that would preclude its maintenance as a class action because the evidence proving the disclosure of personal and private data and information to law enforcement and other government entities without the Yahoo! Users' knowledge or authorization and without proper compliance with the compelled disclosure provisions of the SCA and Wiretap Act is ascertainable through discovery ; the identities of the Class members are known to Yahoo! ; and damages, including the applicable statutory damages, can be calculated to a reasonable certainty through expert testimony . COUNT ONE (Stored Communications Act, 18 U .S .C . § 2701 et seq.) 32 . Plaintiff, on behalf of herself and the class, realleges and incorporates by reference the allegations contained in paragraphs 1 through 31 as if fully set forth here i n . 33 . The Stored Communications Act, 18 U .S .C . §§ 2701-2712 ("SCA") sets forth a system of statutory . privacy rights for customers and users of electronic communications service providers and remote computing service providers such as Yahoo! . 34 . 18 U.S .C § 2702 regulates voluntary disclosure by Internet service providers of customer communicat i ons and records, includ i ng spec i fic prohibitions . 35 . In relevant part, 18 U . S . C § 2702(a)(1) prov ides : "a person or entity provid i ng an

electronic communication service to the public shall not knowingly divulge to any person or

_g . .

entity the contents of a communication wh i le in electronic storage on that service . " 36 . In relevant part, 18 U .S .C § 2702(a)(2) provides : "a person or entity providing

remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service ." 37 . 18 U.S.C . §' 2703 articulates the steps that federal and state law enforcement officers and other government entities must follow to compel providers to disclose the content of stored wire or electronic communications and other information such as account records and basic u ser and session information . 38 . Pursuant to 18 U .S .C . § 2703, law enforcement and other government entities can compel disclosure after obtaining a valid grand jury or trial subpoena and with notice of the subpoena to the user. 39 . State grand jury or trial subpoenas have no force and effect outside of the state of

issuance, and cannot be used or served in another state to compel a provider in the foreign state to give testimony or produce records . 40 . Yahoo!'s disclosure of a Yahoo! User's personal and private information and data i n response to a state grand jury or trial subpoena is improper and violative of the SCA . 41 . Yahoo!'s disclosure of a Yahoo! User's personal and private information and data in response to a state grand jury or trial subpoena without notice of the subpoena to the Yahoo! User is improper and violative of the SCA . 42 . By disclosing user, account and Internet Protocol ("IP") address information in response to a state grand jury or trial subpoena that has no force and effect outside of the state of issuance, Yahoo! knowingly, willfully, unlawfully, intentionally and without authorization

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divulged the contents of communications while those communications were maintained in electroni c storage in violation of 18 U . S . C . §2702(a)(l). 43 . Pursuant to 18 U .S .C . § 2703(c)(1)(A), a law enforcement officer can compel disclosure after obtaining a warrant issued by a court of competent jurisdiction . 44 . Search warrants, however, signed by state magistrates and other state judges have no force and effect outside of the state of issuance, and therefore those search warrants are not issued by a court of competent jurisdiction . 45 . Yahoo!'s disclosure of a Yahoo! User's personal and private information and data in response to a state search warrant is improper and violative of the SCA . 46 . By disclosing user, account and Internet Protocol ("IP") address information in response to a state search warrant that has no force and effect outside of the state of issuance, Yahoo! knowingly, willfully, unlawfully, intentionally and without authorization divulged the contents of communications while those communications were maintained in electronic storage
in violation of 18 U .S .C . §2702(a)(l) .

47 . Yahoo! provides remote computing services to the public as defined in 18 U .S .C . § 2711(2) because it provides computer storage or processing services b y means of an electronic communications system . 48 . Yahoo! carries and maintains its Yahoo! Users' personal and private information and data, contact lists, email communications, photos, files, website posts and other IP address information on behalf of the Yahoo! Users . 49 . Yahoo! carries and maintains some of its Yahoo! Users' personal and private information and data, contact lists, email communicat i ons , photos, files, website posts and other

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IP address information solely for the purpose of providing storage and computer processing services to its users . Yahoo! is not authorized to access this information for purposes other than providing storage and compu ter processing . 50. By engaging in the forego ing acts and omissions, Yahoo ! knowingly, willfully,

unlawfully, intentionally and without authorization divulged the contents of communications that are carried and maintained by Yahoo! on behalf of, and received by transmission from, Yahoo! Users in violation of 18 U .S .C . § 2702(a) . 51 . Yahoo!'s knowing, willful, unlawful, and intentional disclosure of the contents of communications that are carried and maintained by Yahoo! on behalf of, and received by transmission from, Yahoo! Users were not made pursuant to any exceptions to the prohibitions
against disclosure as set forth in 18 U .S .C . § 2702(b) .

52 . Yahoos also engaged in the foregoing acts and omissions without obtaining a warrant issued by a court of competent jurisdiction as required by 18 U .S .C . § 2703(c)(1 )(A) . 53 . Yahoo! also engaged in the foregoing acts and omissions without obtaining a valid grand jury or trial subpoena as required by 18 U .S .C . § 2703(b) . 54 . Yahoo! also engaged in the foregoing acts and omissions without prior notice from the government entity to the user as required by 18 U.S.C . § 2703(b) . 55 . None of the foregoing acts and omissions taken by Yahoo! are were permissible pursuant to any exceptions to the prohibition against disclosure as set forth i n 18 U . S . C . § 2702(b) . 56 . None of the foregoing acts and omissions taken by Yahoo! are based on a good

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faith reliance on anything as to constitute a complete defense to this civil action as provided in 18 U.S.C . § 2707(e), 57 . Because of the foregoing violations, Plaintiff, on behalf of herself and the class, is entitled to appropriate relief, including preliminary and other equitable or declaratory relief as this court may deem appropriate pursuant to 18 U .S.C . § 2707(b)(1) . 58 . Plaintiff, on behalf of herself and the class, is entitled to a reasonable attorneys' fees and other litigation costs reasonably incurred as provided by 18 U .S .C . § 2707(b)(3) . 59 . Plaintiff on behalf of herself and the class is entitled to recover monetary damages including actual damages, and statutory damages in the amount of not less than $1,000 .00 per class member as provided by 18 U .S .C . § 2707(c). 60 . Because Yahoo!'s violations were willful and intentional, plaintiff on behalf of

herself and the class is entitled to recover punitive damages as provided by 18 U .S .C . § 2707(c) .

COUNT TWO
(Wiretap Act, 18 U.S.C. § 2510 et seq.) 61 . Plaintiff, on behalf of herself and the class, realleges and incorporates by

reference the allegations contained in paragraphs I through 60 as if fully set forth herein . 62 . Yahoo!'s Users' contact lists, email communications, photos, files, website posts and other IP address information are electronic communications within the meaning of 18 U . S . C . § 25l 0(12 ) . 63 . By disclosing users' personal and private information and data, contact lists, email communications, photos, files, website posts and other IP address information to law enforcement and other government entities without a valid grand jury or trial subpoena, Yahoo?

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knowingly, willfully, unlawfully, intentionally and without authorization intercepted and disclosed electronic communications in violation of 18 U .S .C . § 2511(])(a) & (c) . 64 . By disclosing Yahoo! Users' personal and private information and data, contact lists, email communications, photos, files, website posts and other IP address law enforcement and other government entities without a valid grand jury or trial subpoena, Yahoo! knowingly, willfully, unlawfully, intentionally and without authorization divulged the contents of communications of Yahoo!'s Users to persons other than the intended recipients in violation of 18 U .S .C . § 2511(3)(a) . 65 . By disclosing users' personal and private information and data, contact lists, email communications, photos, files, website posts and other IP address information to law enforcement and other government entities without a warrant issued by a court of competent jurisdiction, Yahoo! knowingly, willfully, unlawfully, intentionally and without authorization intercepted and disclosed electronic communications in violation of 1 8 U .S .C . § 2511(1)(a) & (c) . 66 . By disclosing Yahoo! Users' personal and private information and data, contact

lists, email communications, photos, files, website posts and other IP address information to law enforcement and other government entities without a warrant issued by a court of competent jurisdiction, Yahoos knowingly, willfully, unlawfully, intentionally and without authorization divulged the contents of communications of Yahoo! Users to persons other than the intended recipients in violation of 18 U .S.C . § 2511(3)(a). 67 . Yahoo! is not a party to any of the above-mentioned communications, nor have any of the parties to the communications given prior consent to Yahoo!'s interception or

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divulging of those communications as defined by 18 U . S . C . § 2511(2)(d) . 68 . Yahoo ! engaged in the foregoing acts and omissions without first obtaining a

valid grand jury or trial subpoena . 69. Yahoo! engaged in the foregoing acts and omissions without first obtaining a warrant issued by a court of competent jurisdiction. 70. None of the foregoing acts and omissions taken by Yahaoi were permissible pursuant to any exceptions to the prohib ition against disclosure as set forth in 18 U . S .C . § 2511(2) . 71 . None of the foregoing acts and omissions taken by Yahoo! were based on a good faith reliance on valid legal process or anything else as to constitute a complete defense to this

civi l action as set forth in ] 8 U.S.C. § 2520(d) .
72 . Because of the foregoing violations, Plaintiff, on behalf of herself and the class, is entitled to appropriate relief, including preliminary and other equitable or declaratory relief as
this court may deem appropriate Pursuant to 18 U . S .C . § 2520(b)(1),

73 . Because Yahoo!'s violations were willful and intentional, plaintiff, on behalf of herself and the class, is entitled to recover punitive damages as provided by 18 U . S . C . § 2520(b)(2) . 74 . Plaintiff, on behalf of herself and the class, is entitled to reasonable attorneys' fees and other litigation costs reasonably incurred as provided by 18 U .S .C . § 2520(b)(3) . 75 . Plaintiff, on behalf of herself and the class, is entitled to recover monetary damages including actual damages, and statutory damages in the amount of not less than

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$10,004 .U0 per class member as provided by 18 U .S .C, § 2520(c)(2) . COUNT THREE (Breach of Contract) 76. Plaintiff, on behalf of herself and the class, realleges and incorporates by reference the allegations contained in paragraphs I through 75 as if fully set forth herein . 77, Yahoo! has entered into an agreement with its Yahoo! Users regarding the disclosure of its users' personal and private information and data, which is set forth in the Yahoo! Privacy Policy (the "Agreement") 78 . The Agreement sets forth the rights of Yahoo! Users concerning the collection, protection, use and disclosure of a Yahoo! User's personal and private information and data as required by law and by Yahooi's applicable privacy policies . Plaintiff and the Class were the intended benefic i ari es of such agreement . 79 . Yahool breached the Agreement by disclosing Yahoo! Users' personal and private information and data to law enforcement and other government entities without compliance with the terms of a valid legal process such as a subpoena, court order, or search warrant . 80 . As a beneficiary of the Agreement with Yahoo!, Plaintiff, on behalf of herself and the Class, asserts this breach of contract claim against Yahool . 81 . Yahoo! is liable . to Plaintiff and members of the Class for the damages resulting from said unlawful disclosures in violation of the Agreement during the Class Period, plus prejudgment interest and any other relief ordered by the Court. 82 . All conditions precedent to bringing this Count have been completed, performed

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and/or waived . l6-COUNT FOUR (Breach of Implied Duty of Good Faith and Fair Dealing) 83 . Plaintiff, on behalf of herself and the class, realleges and incorporates by reference the allegations contained in paragraphs I through 82 as if fully set forth herein . 84 . Every contract implies a covenant or duty of good faith and fair dealing in the performance of the agreement and its enforcement, including Yahooi's Agreement with its Yahoo! Users regarding the disclosure of Yahoo! Users' personal and private information and data, which is set forth in the Yahoo! Privacy Policy . 85 . Under the duty of good faith and fair dealing, both parties to a contract impliedly promise to perform their promises and provide such cooperation as is required for the other party's performance . 86 . Under the duty of good faith and fair deal i ng, both parties to a contract implie d ly

promise compliance with the spirit, and not merely the letter, of a contract . 87 . Plaintiff and the Class reasonably relied on Yahoo ! to comply with its duty of

good faith and fair dealing with regard to the terms of the Agreement . 88 . The Agreement is a form contract, the terms of which are deemed to have been

accepted once Yahoo! provides any Internet service or other service to a user . The Agreement purports to notify Yahoo! Users of Yahoo!'s agreement with Yahoo! Users regarding the collection, protection, use and disclosure of its Yahoo! Users' personal and private information and data.

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89 . Yahoo! has a duty to exercise good faith in its protection of its Yahoo! Users' personal and private information and data by requiring valid legal process prior to disclosure of its users' personal and private information and data . 90 . Yahoo! breached its implied duty of good faith and fair dealing by exercising bad faith in automatically and unlawfully accepting as valid legal process, facsimile transmissions of state grand jury or trial subpoenas, which have no force and effect outside of the state of issuance

and are invalid,
91 . Yahoo! breached its implied duty of good faith and fair dealing by exercising bad

faith in automatically and unlawfully accepting as valid legal process, facsimile transmissions of search warrants signed by state magistrates and other state judges, which have no force and effect outside of the state of issuance . 92 . Yahoo! is liable to Plaintiff and members of the Class for the damages resulting from said breach of implied duty of good faith and fair dealing during the Class Period, plus prejudgment interest and any other relief ordered by the Court . 93 . and/or waived . PRAYER FOR RELIEF WHEREFORE, Plaintiff prays that the Court enter judgment and grant the following relief to Plaintiff and the Class : (a) That the Court certify this action as a class action under O .C .G.A . § 9-11-23 with respect to the Plaintiff's claims for damages and other relief, and declaring Plaintiff as All conditions precedent to bringing this Count have been completed, performed

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t

representative of the Class and her counsel as counsel for the Class ; (b) An award of monetary damages including actual damages, and statutory damages in the amount of not less than $1,000 .00 per class member as provided by 18 U .S .C . § 2707(c) ; (c) An award of monetary damages including actual damages, and statutory damages in the amount of not less than $10,000 .00 per class member as provided by 18 U .S .C . § 2520(c)(2) ; (d) Declaratory and injunctive relief as this court may deem appropriate . ] 8 U . S . C. § 2707(b)(1) ; (e) An award of punitive damages in an amount to be determined by the enlightened

conscience of an impartial jury ; (f} An award of monetary damages including actual damages for breach of contract . - (g) An award of reasonable attorneys' fees and costs of litigation ; (h) Pre -judgment interest and post judgment interest as provided by law; and (i) All such other and further relief allowed by law and as the Court deems just and proper. JURY DEMAND Plaintiff demands a trial by jury .

[Signature on following page]

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Dated : SepternberV, 201 0

Respectfully submitted, LAW OFFICE OF JOSHUA A. MILLICAN, P.C .

d
Jo a A . Millican
G rgia Bar No . 508998 The Grant Building Suite 607

44 Broad Street, N .W . Atlanta, GA 30303 Telephone : [phone] Facsimile : [phone] MORGESE LAW FIRM Anthony J . Morgese Georgia Bar No . 523430 3233 S . Cherokee Lane Building 1000 Woodstock, GA 30188 Telephone : [phone] Facsimile : [phone] Counsel for Plaintiff

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Yahool takes your privacy seriously . Please read the following to learn more about our privacy policy .

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The federal government and tecnnoiogy industry have developed 12 radlcai tics to help you guard against Internet fraud, secure your computer arid protect your perSar+et information .

CONFIDENTIALITY AND SECURITY Now Yahoo! Uses Your Personal Information This policy covers how Yahoo! treats personal information that Yahoo! QUESTIONS AND SUGGESTIONS collects and receives, including information related to your pest use of Yahool products and services . Personal information is information about you that is personally identifiable like your name, address, email address . ~ a~ em P"" or phone number, and that is not otherwise publicly available . TR VSTV This polic does not apply to the practices of companies that Yahoo ! does y CERT iF-EDP Q N+xCY not own or control, or to people that Y ahov l does not employ or manage . In addition, some companies that Yahoo ± has acquired have their own, preexi sii ng privacy policies which may be viewed on ow acgvirjed

This privacy Policy only applies to Yahool

comp pies yagq.

Yahoa! ' s participation in the Safe Harbor program Yahooi participates i n the Safe Harbor prog ram developed by the U .S . Department of Commerce and the European Union . To vievy our certification, visit the U .S . Department of Commerce's Safe Harbor Web Wig. For more information about Ya hoo P s participation in the Safe Harbor program, please visi t our Sate Harbor details pageReturn to Top

IN FO RMA TI ON COLLECTION AND US E General
Yalsool collects personal information when you register with Yehoo+ . when you use Yahoo! oroduds or servi M , when you visit Yahoo! pages or the pages of certain Yahoo! partners, and when you enter o(omoti ons w sweepstakes. Yahool may conbiae information about you that we have with information we obtain from business partners or other companies . When you register we ask for inlprmal ion such as your name , email address, birth date , gender, ZIP code , occupation, industry, and personal interests . For sorry financial products and services we might also ask for your address, Social Security number, and information about your assets. When you register with Yahoo ! and sign in to our services . you are not anonymous to us.

Read more In the Yl Policy Bloc!

http :/iinfo .yahoo .comlprivacylus/yahooide#ails .html

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Yahoo! Privacy Policy
Yahooi collects Information about your transactions with us and with some of our business partners, including information about your use of financial products and services that we offer .
Yahoal automatically receives and records Information from your computer and browsef, including your /P a ddress, Yahool cookie information, software and hardware attributes, and the page you request . Yahoo! uses information for the following general purposes : to customize the advertising and content you see, fulfill your requests for products and services. Improve our services, contact you, Conduct research, and , provide anonymous reporting for internal and external clients .

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Children
When a ch ild under age 13 attempts to register w i th Yahool, we ask the chii a to have a parent or guardi an create a YahooE Family Account to obtain parental permission. Yahoo 3 does not contact children under age 13 about special offers or (or marketing purposes without a parent's permission.
Yahoo! does not ask a child under age 13 for more personal inlormaGOn. as a condition of partici pation, than i s reasonably necessary to participate in a g iven act i vity or promotion .

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Yahoo! does not rent, sell , or share pe rsonal information about you with o ther peopl e or non-affiliated companies except to provide products or services you've requested , when we have your pe r mission , or under the follow ing circumsta nces : · We provide the information to trusted partners who work on behalf of or with Yahoo! under Confidentiality agreements . These companies may use your personal information to help Yahoo! communicate with you about offers from Yahool and our marketing partners. However, these companies do not have any independent right to share this information,

INFORMATION SHARING AND DISCLOSURE

· We have a parenPs permission to share the information i( the user is a child under age 13 . Parents have the option of allowing Yahoos to collect and use their child's information without consenting to Yahoos sharing of this information with people and companies who may use this information for their own purposes. We respond to subpoenas, court orclers, or legal process, or to establish or exercise cur legal rights or defend against legal claims .

· We believe it is necessary to share information in order to investigate, prevent, or take action regarding illegal activities, suspected baud, situations involving potential threats to the physical safety of any person, violations of YahooPs terms o(useor as otherwise required bylaw, · We transfer information about you if Yahool is acquired by or merged with another company . In this event, Yahool will notify you before information about you is transferred and becomes subject to a different privacy policy .
Yahoo! displays targeted advertisements based on personal information . Advertisers (including ad serving companies) may assume that people who interact with, view, or Click targeted ads meet the targeting criteriafor example, women ages 18-24 from a particular geographic area .

· Yahoo! does not provide any personal information to the advertiser when you interact with or view a targeted ad- However, by interacting with or viewing an ad you are consenting to the possibility that the advertiser will make the assumption that you meet the targeting criteria used to display the ad . · Yahoo! advertisers include financial service providers (such as banks, insurance nent5, stock brokers and mortgage lenders) and non-financial companies (such as stores, airlines, and software companies) . Yahoo! works with vendors, partners, advertisers, and other service providers in different industries and categories of business . For more information regarding providers of products or services that you've requested please read our detailed referen ce links.

http :ll info .yahoo .coin/privacy{us/yahoo/details .html

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' Yahoo ! Privacy Policy
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COOKIES Yatmoi may se! and access Yahocl cookies on your computerYahoo': lets ether companies that show advertisements on some of our pages set and access their cooKies on your computer. Other companies ' use of thei r cookies is Subject to their own privacy policies, not this one . Advertisers or other companies do not have access to Yahool's cookies . Yahoos uses wEb besCOnS to access Yahoo! cook ies inside and outside our n etwor k of web si tes arid i n connection with Yahoo! products and services .

Your Ability to Edit and Delete Your Account Informat i on and Preferences

General

Preferences, at any time.

You can edit your Yahoo! Accpunt Information, including your rna*gp nc

New categ orie s of ma rketing rommunk;a4ons mi gh t be added to the Mar keting Preferences page f rom t irre to 6me . Users who visi t t his page c an opt ou t of receiving future marketing commu n i ca tions from these new categories or they can unsubscribe by following instructions contained in the messag es they rec eive . We reserve the rignt to send y ou cedain communications relati ng to the Yahoo ! service, s u ch as service announcements, adm in ist rative mess ages ano the Y a hoo! News'etter, thE:t are considered part of you r Yahool acco unt , without offering you the opportunity to apt out of r ece iving themIt ou can deiele your Yahoo! account by visiting our nt I ion page . Please click here to read a bout information that might possibly remain in our archived records after your account has been deleted . Children Parents can review, edit, and delete information relat ing to their chi ld 's Yahoo ! account usi ng tools offered by Yat+AOl famiiv Accaunts .
it a parent chooses not to atlas us to further collect or use a child's information, parents enrolled in Yahoo! Family Accounts can delete their child's account by signing into that child's account and then visiting our A un Uel do_n page. Please clo h r to read about information that might possibly remain in our archived records after your account has been deleted .

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CONFIDENTIALITY AND SECURITY

1N2 limi t access to personal information about you to employees who we believe reasonably ne ed to came into contact w ith that Information to provide pr od u cts o r serv ices tD you or in order to d o th eir j obs .

We have physical, e lectronic, a nd proced ura l safeguards tha t comply w ily federal regulati ons to protect personal information about you. ' To lear n more about secunty, includ ing the securi ty steps we have taken and .Sacu fily steps you can ta ke, please read Security at YahoQl

CH ANGES TO THIS PRIVACY POLICY

Yahoo' may update this polwy- We will notify you a bout significant changes in the way we treat personal information by sending a notice to the primary emsil address specified in your Yahoal account or by placing a prominent notice on our side. R e t um to T on

http :l/info .yahoo .comlprivacylus/yahoo/details .html

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Yahoo! Privacy Policy

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QUESTIONS AND SUGGESTIONS

Yahoo ! is, TRUST · rtd fied. This certification applies to all Englishla nguage sites under the Yahco . com domain. If you feel that your e nqui ry has not been salistactorily addressed, you should contact TRUSTeg . an independent privacy organ ization . TRUSTe serves as a liaison with Yahoo ! to resolve your concer n. It you have questions or suggestions . please complete a feedback form or you ca n contact us at Yahoo? Inc . Customer care - Privacy Policy issues 70 1 First Aven ue Surnyv ale . CA 94089 (4 481 34& 50 i 0 Effective Dale: November 22, 200 6 Return to Ton

Copyright O 2010 Yahoo! lnc. AN Rights ReservedPrivacy I Legal

http :llinfo .y ahoo .com/privacy/uslyahoo/details .html

9/27/2010

IN T1 IF SUPFRIOR COURT OF FULTON COUNTY STATE OF GEORGLA
FAYELYN SANI S, etc .

Plaintiff,
vs. YAHOO! INC ., CIVIL ACTION CASE NO . : 201OCV1914$2

Defendant . AFFIDAVIT OF SERVICE COMES N OW, E LI ZABE TH SMIT H, a United St a tes ci tiz en and over the age of 18 year s, befo re t he u nde rs i gn e d offi cer duly au t horized to adm i nister oaths, a nd , b e ing sworn on oath, deposes and states as follows : I I served YAHOO! IN C , with the below-listed documents in this matter, in the below-descr i bed manner, at 120 1 PEA C HT RE S T N E, AT L AN'1 'A , GA 3(}361, on Septembe r 29, 2010, at 3 : 45 PM : SUMMONS/COMPLAINT W/ EXHIBIT "A"

Sa i d documents were served by handing to SHAKINAH EDWARDS, CT Corp , Process Specialist . 2.

ELIZABETH SMI Sworn to and subscribe before e is the 3 da of S temb r2 .0 .
a Public ~ ~p y~tiS 1 3
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Attorneys' Personal Services, Inc .

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