Nobles v. Google, Inc. et al

Filing 1

CLASS ACTION COMPLAINT against Google, Inc., Pointroll, Inc. ( Filing fee $ 350, receipt number 44611009082). DEMAND FOR JURY TRIAL. Filed byZetha Nobles. (far, COURT STAFF) (Filed on 7/10/2012) (Additional attachment(s) added on 7/12/2012: # 1 part two, # 2 Civil Cover Sheet) (far, COURT STAFF).

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Plaintiff and Class Members seek compensatory damages, in an amount to be

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Plaintiff and Class Members have suffered irreparable and incalculable harm and

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Defendants' violations. The harm will continue unless Defendants are enjoined

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injuries fro

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from furth r violation of this section. Plaintiff and Class Members have no adequate remedy at

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law.

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Plaintiff and the Class Members are entitled to punitive or exemplary damages

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pursuant to Cal. Penal Code§ 502(e)(4) because Defendants' violations were willful and, on
informatio and belief, Defendant is guilty of oppression, fraud, or malice as defined in Cal.

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Plaintiff and the Class Members have also suffered irreparable injury from these

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unauthorize acts of disclosure, to wit: all of their personal, private, and sensitive web
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communica ions have been harvested, viewed, accessed, stored, and used by Defendants, and

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have not be n destroyed, and due to the continuing threat of such injury, have no adequate

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remedy at I w, entitling Plaintiffto injunctive relief.

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FOURTH CAUSE OF ACTION
(Violations of California's Invasion of Privacy Act,
California Penal Code 630, et seq.)

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138.

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Plaintiff incorporates by reference and realleges all paragraphs previously alleged

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Plaintiff asserts this claim against the California Defendants named herein in this

herein.

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complaint o behalf of herself and the Class.
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140.

California Penal Code section 631 provides, in part:
"Any person who ... willfully and without the consent of all
parties to the communication, or in any unauthorized manner,

CLASS AC ION COMPLAINT

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reads, or attempts to read, or to learn the contents or meaning of
any message, report, or communication while the same is in transit
or passing over any wire, line, or cable, or is being sent from, or
received at any place within this state; or who uses, or attempts to
use, in any manner, or for any purpose, or to communicate in any
way, any information so obtained, or who aids, agrees with,
employs, or conspires with any person or persons to unlawfully do,
or permit, or cause to be done any of the acts or things mentioned
above in this section, is punishable ... "

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141.

At all relevant times, Defendants' business practices of accessing the Computing

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Device dat of the Plaintiff and Class Members was without authorization and consent,

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including, ut not limited to, obtaining any and all communications.

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142

On information and belief, Plaintiff, and each Class Member, during one or more

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of their int ractions on the internet during the Class Period, communicated with one or more web

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entities bas d in California, or with one or more entities whose servers were located in

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California.

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143.
Members

Communications from the California web-based entities to Plaintiff and Class
re sent from California. Communications to the California web-based entities from

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Class Members were sent to California.

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144.

Plaintiff and Class members did not consent to any of the Defendants" actions in

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intercepting reading, and/or learning the contents of their communications with such California-

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based entiti s.

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145.

Plaintiff and Class Members did not consent to any of the Defendants' actions in

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using the co tents of their communications with such California-based entities.
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Defendants are not a "public utility engaged in the business of providing

communicat ons services and facilities ... "

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The actions alleged herein by the Defendants were not undertaken "for the

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purpose o construction, maintenance, conduct or operation of the services and facilities of the
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public uti! ty."
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The actions alleged herein by the Defendants were not undertaken with respect to

any teleph mic communication used for communication exclusively within a state, county, city
and count' , or city correctional facility.

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The Defendants directly participated in the interception, reading, and/or learning

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of the cont nts of the communications between Plaintiff, Class Members and California-based
web entiti( s.

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Alternatively, and of equal violation of the California Invasion of Privacy Act, the

Defendant aided, agreed with, and/or conspired with third parties to unlawfully do, or permit, or

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cause to be done all of the acts complained of herein.
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151.

Plaintiff and Class Members have additionally suffered loss by reason of these

violations, ncluding, without limitation, violation ofthe right of privacy.

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

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Pursuant to Section 637.2 of the California Penal Code, Plaintiff and the Class have been injured
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by the vioh tions of California Penal Code section 631. Wherefore, Plaintiff, on behalf of herself
and on beh If of a similarly situated Class of consumers, seeks damages and injunctive relief.

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FIFTH CAUSE OF ACTION
(Violations of California's Unfair Competition law ("UCL"),
Cal. Business and Professions Code § 17200, et seq.O

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153.

Plaintiff incorporates by reference and realleges all paragraphs previously and

subsequently alleged herein.

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CLASS A TION COMPLAINT

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Plaintiff asserts this claim against the California Defendants named herein in this

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complaint n behalf of herself and the Class.
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In violation of California Business and Professions Code § 17200 et seq.,

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Defendant ' conduct in this regard is ongoing and includes, but is not limited to, statements

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made by D fendants in their information privacy and confidentiality practices.

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By engaging in the acts and practices described herein, Defendants have

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committed one or more acts of unfair competition within the meaning of the UCL and, as a
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result, Plai tiff and the Class members have suffered injury-in-fact and have lost money and/or
property- pecifically, personal information, cleanup costs, and/or bandwidth costs.
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In reasonable reliance on Defendants' misrepresentations and omissions, Plaintiff

visited the eferenced websites which caused Defendants' tacking mechanisms to be placed on

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her Compu ing Devices.
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Defendants' business acts and practices are unlawful, in part, because they violate

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California usiness and Professions Code § 17500, et seq., which prohibits false advertising, in

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that they w re untrue and misleading statements relating to Defendants' performance of services,

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e intent to induce consumers to enter into obligations relating to such services, and
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regarding

hich statements Defendants knew, or which by the exercise of reasonable care

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Defendants should have known, to be true and misleading. Defendants' business acts and

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practices ar also unlawful in that they violate the California Consumers Legal Remedies Act,

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California ivil Code § 1750 et seq., California Penal Code § 502, and 18 U.S.C. § 1030.
re therefore in violation of the "unlawful" prong of the UCL.
Defendants' business acts and practices are unfair because they cause harm and
to Plaintiff and Class Members, and for which Defendants have no justification

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other than o increase, beyond what Defendants would have otherwise realized, their profit in
fees from dvertisers and their information assets through the acquisition of consumers' personal

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informatio . Defendants' conduct lacks reasonable and legitimate justification in that Defendants
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have bene ted from such conduct and practices while Plaintiff and the Class Members have been

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misled as t the nature and integrity of Defendants' services and have, in fact, suffered material

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disadvanta e regarding their interests in the privacy and confidentiality of their personal

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informatio . Defendants' conduct offends public policy in California tethered to the Consumers

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Legal Re edies Act, the state constitutional right of privacy, and California statutes recognizing
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the need£ r consumers to obtain material information that enables them to safeguard their own

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privacy int rests, including Cal. Civ. Code § 1798.80. In addition, Defendants' modi operandi

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constitute harp practices in two ways: (i) Defendants know, or should know, that consumers

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care about the status of personal information and Internet privacy but are unlikely to be aware of
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the manne in which Defendants fail to fulfill their commitments to respect consumers' privacy;

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and (ii) to he extent consumers do become aware of Defendants' conduct and practices,

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Defendant ' business model is designed to generate high traffic volume to make up for the loss

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of revenue from consumers disaffected by Defendants' misleading messages. Defendants are

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therefore i violation of the "unfair" prong ofthe UCL.
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Defendants' acts and practices were fraudulent within the meaning of the UCL

because th yare likely to mislead the members of the public to whom they were directed.
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Plaintiff, on behalf of herself and on behalf of each member of the Class, seeks

individual estitution, injunctive relief, and other relief allowed under the UCL.

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CLASS

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SIXTH CAUSE OF ACTION
Violations of California's Consumer Legal Remedies Act ("CLRA")
Cal. Civ. Code§ 1750, et seq.)

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162.

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Plaintiff incorporates by reference and realleges all paragraphs previously alleged

163.

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Plaintiff asserts this claim against the California Defendants named herein in this

herein.

complaint n behalf of herself and the Class.

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In violation of California Civil Code§ 1750, et seq. (the "CLRA"), Defendants

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have enga ed and are engaging in unfair and deceptive acts and practices in the court of

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transaction with Plaintiff, and such transactions are intended to and have resulted in the sales of

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services to consumers. Plaintiff and the Class Members are "consumers" as that term is used in

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the CLRA ecause they sought or acquired Defendants' services primarily for personal, family,

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or househ ld purposes. Defendants' past and ongoing acts and practices include, but are not
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limited to:

a.

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Defendants' representations that their services have characteristics, uses,

and benefi s that they do not have, in violation of Civil Code § 1770(a)(5);

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b.

Defendants' representations that their services are of a particular standard,

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quality an grade but are of another standard quality and grade, in violation of Civil Codes §
1770(a)(7) and

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c.

Defendant's advertisement of services with the intent not to sell those

services as advertised, in violation of Civil Code § 1770(a)(9).

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Defendants' violation of Civil Code § 1770 have caused ongoing harm to Plaintif

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and the ot er Class Members and threaten additional injury if the violations continue. This
damage in ludes the loss of the benefit of bargain of Defendants' services, transactions for whic

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were prem·sed, in part, on consumers' reasonable expectations of the material accuracy of
Defendant ' representations in their information privacy and confidentiality practices.

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At this time, Plaintiff seeks only injunctive relief under this cause of action.
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Pursuant t Civil code § 1782, in conjunction with the filing of this action, Plaintiff will notify

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in writing of the particular violations of Civil Code § 1770 and demand that

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rectify the problems associated with their behavior detailed above, which acts and

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practices

e in violation of Civil Code § 1770.

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If Defendants fail to respond adequately to Plaintiffs above-described demand

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within 30 ays of Plaintiffs notice, pursuant to Civil Code § 1782(b), Plaintiff will amend the

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complaint

request damages and other relief, as permitted by Civil Code § 1780.

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SEVENTH CAUSE OF ACTION
(California Customer Records Act,
Cal. Civ. Code § 1798.80 et seq.)

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Plaintiff incorporates by reference and realleges all paragraphs previously alleged

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Plaintiff asserts this claim against the California Defendants named herein in this

herein.

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complaint n behalf of herself and the Class.
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170

The California Customer Records Act mandates, among other things, that a

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business ta e all responsible steps to destroy or arrange for the destruction of users' contact data

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within its c stody or control which contain personal information which is no longer to be

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retained by the business. Cal. Civ. Code § 1798.81.

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A business may destroy customer records by erasing the information, or

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modifying he personal information in those records to make it unreadable or undecipherable
through an means. Cal. Civ. Code§ 1798.81 (b), (c).

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Defendants have violated Cal. Civ. Code § 1798.81 by failing to erase or

otherwise estroy their users' contact data collected for a limited purpose.

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Pursuant to Cal. Civ. Code § 1798.84, Plaintiff and the Class Members seek

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damages, i eluding statutory damages of $3,000 per violation and injunctive relief. Plaintiff and

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the Class

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as such oth rand further relief as the Court deems just and proper.

embers also seek attorney's fees pursuant to Cal. Code Civ. Proc. § 1021.5, as well

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174.

EIGHTH CAUSE OF ACTION
(Conversion)
Plaintiff incorporates by reference and realleges all paragraphs previously alleged

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Plaintiffs and Class Members' Computing Device data, including, but not limited

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herein.

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to, their Co puting Devices' online usage data is being used by Defendants to obtain PI, PII, an
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SII derived from Plaintiffs and Class Members' Computing Device browsing activities. Such

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property, o ned by the plaintiff and Class Members, is valuable to the Plaintiff and Class

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Members.

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Plaintiffs and Class Members' Computing Devices use bandwidth. Defendants'

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activities,

ade the basis of this action, used without notice or authorization such bandwidth for

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purposes n t contemplated nor agreed to by Plaintiff and Class Members when they visited
websites c ntained Defendants' tracking mechanisms. Such property, owned by the Plaintiff and

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ers, is valuable to the Plaintiff and Class Members.

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Defendants unlawfully exercised dominion over said property and thereby

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converted laintiffs and Class Members' property, by providing PI, PII, and SII to third parties
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and by usi g Plaintiffs and Class Members' bandwidth for data mining, in violation of

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collective

CLASS

ass allegations, made the basis of this action.

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NINTH CAUSES OF ACTION IX
(Trespass to Personal Property I Chattels)

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Plaintiff incorporates by reference and realleges all paragraphs previously alleged

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The common law prohibits the intentional intermeddling with personal property,

herein.

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including

Computing Device, in possession of another which results in the deprivation of the

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use ofthe ersonal property or impairment of the condition, quality, or usefulness of the personal

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property.

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By engaging in the acts alleged in this complaint without the authorization or

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consent of laintiff and Class Members, Defendants dispossessed Plaintiff and Class Members
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from use a d/or access to their own Computing Devices, or parts of them. Further, these acts

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impaired t e use, value, and quality of Plaintiffs and Class Members' Computing Devices.

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Defendants' acts constituted an intentional interference with the use and enjoyment of the

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Computing Devices. By the acts described above, Defendants have repeatedly and persistently
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engaged in respass to personal property in violation of the common law.
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Without Plaintiffs and Class Members' consent, or in excess of any consent

given, Defl ndants knowingly and intentionally accessed Plaintiffs and Class Members'
property, t ereby intermeddling with Plaintiffs and Class Members' right to possession of the

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causing injury to Plaintiff and the Class Members.
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Defendants engaged in deception and concealment in order to gain access to

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Plaintiffs

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d Class Members' Computing Devices.
Defendants undertook the following actions with respect to Plaintiffs and Class

Members'

omputing Devices:

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CLASS A TION COMPLAINT

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a.

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Defendants accessed and obtained control over the user's Computing

Device;

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b.

Defendants caused the installation of a new code onto the HDD of the

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user's Computing Device; and

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c.

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Defendant programmed the operation of their code to function and operate

without no ice or consent on the part of the owner of the Computing Device, and outside of the
control oft e owner of the Computing Device.

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

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granted wh n they visited the websites containing the Defendants' tracking mechanisms and

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none of the e acts was in furtherance of users viewing the websites containing the Defendants'

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tracking m chanisms. By engaging in deception and misrepresentation, whatever authority or

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permission Plaintiff and Class Members may have granted to Defendants was exceeded.
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Defendants' installation and operation of their tracking mechanisms used,

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interfered, nd/or intermeddled with Plaintiffs and Class Members' Computing Devices. Such

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use, interfe ence and/or intermeddling was without Plaintiffs and Class Members' consent or, in

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the altemat ve, in excess of Plaintiffs and Class Members' consent.

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187

Defendants' installation and operation of their tracking mechanisms constitutes

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trespass, n isance, and an interference with Plaintiffs and Class Members' chattels, to wit, their

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Computing Devices.

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188

Defendants' installation and operation of their tracking mechanisms impaired the

condition a d value of Plaintiffs and Class Members' Computing Devices.

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Defendants' trespass to chattels, nuisance, and interference caused real and
substantial amage to Plaintiff and Class Members.

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As a direct and proximate result of Defendants' trespass to chattels, nuisance,

interferenc , unauthorized access of and intermeddling with Plaintiffs and Class Members'

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property,

efendants have injured and impaired the condition and value of Plaintiffs and Class

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Members'

omputing devices, as follows:

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a.

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Plaintiffs and Class Members' Computing Devices (including space,

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By consuming the resources of and/or degrading the performance of

me ory, processing cycles, and Internet connectivity);

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b.

By diminishing the use of, value, speed, capacity, and/or capabilities of

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Plaintiffs and Class Members' Computing Devices;

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c.

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Members' possessory interest in their Computing Devices;

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By devaluing, interfering with, and/or diminishing Plaintiffs and Class

By altering and controlling the functioning of Plaintiffs and Class

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Me bers' Computing Devices;
By infringing on Plaintiffs and Class Members' right to exclude others

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e.

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from their Computing Devices;

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By infringing on Plaintiffs and Class Members' right to determine, as

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owners of their Computing Devices, which programs should be
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inst lled and operating on their Computing Devices;
By compromising the integrity, security, and ownership of Plaintiffs

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and Class Members' Computing Devices; and

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By forcing Plaintiff and Class Members to expend money, time, and

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resources in order to remove the tracking mechanisms installed on their
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Co puting Devices without notice or consent.

CLASS

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TENTH CAUSE OF ACTION
(Unjust Enrichment)

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Plaintiff incorporates by reference and realleges all paragraphs previously alleged

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Plaintiff asserts this claim against each and every Defendant named herein in this

herein.

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complaint on behalf of herself and the Class.
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A benefit has been conferred upon Defendants by Plaintiff and the Class

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Members On information and belief, Defendants, directly or indirectly, have received and
retained i formation regarding Plaintiff and Class Members that is otherwise private,

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confident al, and not of public record, and/or have received revenue from the use and provision
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of such i

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Defendants appreciate or have knowledge of said benefit.

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Under Principles of equity and good conscience, Defendants should not be

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permitte to retain the information and/or revenue that they acquired by virtue of their unlawful

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conduct. All funds, revenues, and benefits received by Defendants rightfully belong to Plaintiff
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lass Members, which Defendants have unjustly received as a result of their actions.

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VII.

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PRAYER FOR RELIEF

laintiff Zetha Nobles, individually and on behalf of all others similarly situated, prays
for the

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Certify this matter as a class action.
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Enter judgment in favor of Plaintiff and the Class.

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c.

Enter injunctive and/or declaratory relief as is necessary to protect the interests f

Plainti f and the Class.

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CL SS ACTION COMPLAINT

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D.

Except for the cause of action for violation of the CLRA, award damages to Class

Members, n amounts to be proved.

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E.

Except for the cause of action for violation of the CLRA, award restitution against

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Defendant in amounts to be proved.

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Except for the cause of action for violation of the CLRA, award increased or
ages in amounts to be proved.

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G.

Except for the cause of action for violation of the CLRA, award disgorgement of

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monies obt ined through and as a result of unfair and/or deceptive acts and/or practices, in
amounts to be proved.

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Except for the cause of action for violation of the CLRA, award Plaintiff and the

Class pre- nd post-judgment interest, to the extent allowable.

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Except for the cause of action for violation of the CLRA, make such orders or

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judgments s may be necessary to restore to any person in interest any money or property that
may have een acquired by means of false or misleading advertising or unfair competition.
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Except for the cause of action for violation of the CLRA, award Plaintiff and the

Class their easonable litigation expenses and attorneys' fees.

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Award such other and further relief as equity and justice may require.

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CLASS

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•
DEMAND FOR JURY TRIAL

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Pla ntiff demands a trial by jury on all issues triable.
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Respectfully submitted,
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Dated: Ju e 26, 20112

THE TERRELL LAW GROUP

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REGINALD TERRELL, ESQ.
THE TERRELL LAW GROUP
Post Office Box 13315, PMB #148
Oakland, California 94661
Telel'hone: [phone]
Facs1mile: [phone]

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CLA S ACTION COMPLAINT