Pimental v. Google, Inc. et al

Filing 1

COMPLAINT against Google, Inc., Slide, Inc. ( Filing fee $ 350, receipt number 34611060360.). Filed byBret L. Lusskin. (vlk, COURT STAFF) (Filed on 5/27/2011) (Additional attachment(s) added on 6/2/2011: # 1 Civil Cover Sheet) (vlk, COURT STAFF).

SEAN REIS (SBN 184044)
[e-mail]
EDELSON MCGUIRE, LLP
3002 1 Tomas Street, Suite 300
Rancho Santa Margarita, California 92688
Telephone: [phone]
Facsimile: (949) 459-2 123
JAY EDELSON*
([e-mail])
RAFEY S. BALABANIAN*
([e-mail])
CHRISTOPHER L. DORE*
([e-mail])
EDELSON
MCGUIRE
LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
Fax: [phone]

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[additional counsel appearing on signad% page]
' L - .

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* Pro hac vice Application Forthcoming

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DMR

2585

ATTORNEYS FOR PLAINTIFF AND THE PUTATIVE CLASS
UNITED STATES DISTRICT COURT

II

NORTHERN DISTRICT OF CALIFORNIA
BRET L. LUSSKIN, JR. individually and on
behalf of all others similarly situated,

) Case No.
)

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Plaintiff,

1
1

v.
GOOGLE, INC., a Delaware corporation, and
SLIDE, INC., a Delaware corporation,
Defendants.

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1 ICOMPLAINT

) CLASS ACTION COMPLAINT

)
)

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) DEMAND FOR JURY TRIAL

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CLASS ACTION COMPLAINT
1.

Plaintiff Bret L. Lusskin, Jr. brings this class action complaint against

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Defendants Google Inc. and Slide Inc. to stop Defendants' practice of making unsolicited

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text message calls to cellular telephones, and to obtain redress for all persons injured by their

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conduct.

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knowledge as to himself and his own acts and experiences, and, as to all other matters, upon

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information and belief, including investigation conducted by his attorneys.

Plaintiff, for his class action complaint, alleges as follows upon personal

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PARTIES

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2.

Plaintiff Bret L. Lusskin is a natural person and citizen of the State of Florida.

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3.

Defendant Google, Inc. is a corporation incorporated and existing under the

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laws of the State of Delaware with its principal place of business located at 1600

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Amphitheatre Parkway, Mountain View, California 94043. Google does business throughout

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the United States, including in the State of California and this District.

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4.

Defendant Slide, Inc. is a corporation incorporated and existing under the laws

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of the State of Delaware with its principal place of business at 301 Brannan St, 6th Floor, San

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Francisco, California 94107. Slide is a wholly owned subsidiary of Defendant Google. Slide

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does business throughout the United States, including in the State of California and this

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District.

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JURISDICTION & VENUE
5.

The Court has subject matter jurisdiction over this action pursuant to 28

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U.S.C. tj 1332 (d), because (a) at least one member of the putative class is a citizen of a state

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different from Defendants, (b) the amount in controversy exceeds $5,000,000, exclusive of

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interest and costs, and (c) none of the exceptions under that subsection apply to this action.

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6.

Venue is proper in this district under 28 U.S.C.

4 1391 (a)(l-2) as Defendants

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reside in this District and a substantial part of the events giving rise to the claims asserted

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here occurred in this District.

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COMPLAINT

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COMMON ALLEGATIONS OF FACT
A.

Bulk SMS Marketing

7.

In recent years, marketers who have felt stymied by federal laws limiting

;ohitation by telephone, fax machine, and e-mail have increasingly looked to alternative

;ethnologies through which to send bulk messages cheaply.

8.

Bulk text messaging, or SMS marketing, has emerged as a new and direct

nethod of communicating and soliciting consumer business. The term "Short Message
Service" or "SMS" is a messaging system that allows cellular telephone subscribers to use
;heir cellular telephones to send and receive short text messages, usually limited to 160
:haracters. An SMS message is a text message call directed to a wireless device through the
Jse of the telephone number assigned to the device.
9.

When an SMS message call is successfully made, the recipient's cell phone

rings, alerting him or her that a call is being received. As cellular telephones are inherently
mobile and are frequently carried on their owner's person, calls to cellular telephones,
including SMS messages, may be received by the called party virtually anywhere worldwide.

B.

Defendants Send Text Messages to Consumers Who Do Not Want Them

10.

The newest evolution of text message marketing has taken the form of "group

messaging" applications, such as Defendants' group texting service "Disco," in which a
single person or entity is able to create a group and send text messages to dozens of people at
once. Likewise, a group texting service allows all the recipients to respond to all other
members of the group with a single message.

1 1.

In or around April 201 1, Defendants released a service called Disco, available

on the Internet at Disco.com. Defendants Google and Slide worked jointly in developing and
designing the Disco service. On information and belief, both employees of Google and Slide
participated in and played an integral role in Disco's production and release.
12.

COMPLAINT

Disco is marketed by Defendants as a "group texting" tool, allowing

customers to simultaneously send SMS text messages to large groups of people en masse,
using one common cellular telephone number provided by Defendants.
13.

Using the Disco website or mobile application, a customer signs up, creates a

"group," and then adds up to ninety-nine (99) other individuals to that group by entering their
full names and cellular telephone numbers.
14.

Defendants do not seek to obtain consent to be part of the group, nor does the

group originator need to demonstrate consent, or even agree to gain the consent of the group
members.
15.

A consumer's participation in the group is opt-out, meaning that a consumer

may be added to and kept in the group without authorization.
16.

Once all group members receive a message, they too can respond to everyone

else in the group an unlimited number of times, creating an ongoing "chat room" effect of
nearly constant text messages. Because the messages come from an unknown number, and
the group creator can easily input a fake name, the resulting chat room can be a chaotic storm
of text messages in which people are attempting to figure out what the group is, who the
creator is, how they were put in the group, and how to stop it.
17.

The overall result of this software design is that thousands of consumers

receive text messages through Defendants' Disco service that they neither consented to nor
wanted.
C.

Defendants Harvest the Phone Numbers Submitted bv Group Creators
Text Spam
to Promote the Disco Service Throu~h

18.

Additionally, a group text service opens up an opportunity for the company

controlling the flow of messages, in this case Defendants, to send wireless spam to the
thousands of phone numbers added by consumers who are creating groups for their own
individual use.
19.

COMPLAINT

Defendants are able to harvest all phone numbers added by group creators in

~rder independently send their own text message advertisements promoting their service
to
ind mobile application.
20.

The moment a consumer creates a Disco texting group, but before the group

:reator actually tries to text anyone in the new group, every member of the group is instantly
;ent several text messages directly by Defendants.
21.

These text messages include specific advertisements for Disco's service and

nobile application, and contain a direct link to download the Disco mobile application. For
:xample, a group member may receive a text message in a form similar to the following:
Hi [group member], it's [group creator]. Welcome to Disco!

I just added you to "[group name].
Reply to join our chat or text *who for roster.
Disco is a group texting service.
Standard SMS rates may apply
or chat for FREE wl our app - http://disco.com/d
More info? Text *help To quit? Text *leave
22.

The group creator is not informed that advertisements or other text messages

vill be sent by Defendants and cannot control their transmission.

D.

Plaintiffs Experience with Defendants

23.

On or about April 8, 201 1, Plaintiffs cell phone rang, indicating that a text

call was being received. The text message stated that it was from the Disco service.
24.

The "from" field of such transmission was identified as 302-583-5422. The

phone number 302-583-5422 is owned andlor operated by Defendants.
25.

At no time did Plaintiff consent to the receipt of text messages from

Defendants.
26.

Because group members were not familiar with the phone number 302-583-

5422, or previously had not had any interaction with the website Disco.com, immediately

COMPLAINT

after receiving the first text message Plaintiff received approximately 105 more text
messages through the Disco.com service, all expressing confusion and anger over the
unsolicited barrage of messages.
27.

The flood of text messages became so overwhelming that it effectively

"ammed Plaintiffs cell phone, rendering it completely inoperable until the flow of
messages subsided.

28.

By effectuating these unauthorized text message calls, Defendants have

caused consumers actual harm. In the present case, because of the nature of group texting, a
consumer could be subjected to hundreds of text messages before having an opportunity to
opt out.
29.

In order to redress these injuries, Plaintiff, on behalf of himself and a class of

similarly situated individuals, brings suit under the Telephone Consumer Protection Act, 47
U.S.C.

5 227, et seq. ("47

U.S.C.

5 227"), which prohibits unsolicited voice and text calls to

cell phones.
30.

On behalf of the Class, Plaintiff seeks an injunction requiring Defendants to

cease all wireless spam activities and an award of statutory damages to the class members,
together with costs and reasonable attorneys' fees.

CLASS ACTION ALLEGATIONS
3 1.

Plaintiff brings this action pursuant to Federal Rule of Civil Procedure

23(b)(2) and Rule 23(b)(3) on behalf of himself and a Class defined as follows:

Disco Messapes Class
All persons who (1) received a text message directly from the Disco group
texting service that was not sent by a Disco group leader or another member
of a Disco group; and (2) all persons who opted-out of a Disco texting group
within twenty-four hours of receipt of an initiating text message or who was a

COMPLAJNT

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member of a Disco texting group that was closed within twenty-four hours of
its creation.
32.

Excluded from the Class are Defendants, their legal representatives, assigns,

and successors, and any entity in which Defendants have a controlling interest. Further
excluded are Plaintiffs attorneys. Also excluded is the judge to whom this case is assigned
and the judge's immediate family, as well as any person who created a Disco group.
33.

Upon information and belief, there are tens of thousands of persons in the

Class, such that joinder of all members is impracticable.
34.

Plaintiff will fairly and adequately represent and protect the interests of the

Class members. Plaintiff has retained counsel with substantial experience in prosecuting
complex litigation and class actions. Plaintiff and his counsel are committed to vigorously
prosecuting this action on behalf of the members of the Class, and have the financial
resources to do so. Neither Plaintiff nor his counsel have any interest adverse to those of the
other members of the Class.
35.

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

litigating their claims to be prohibitive, and will have no effective remedy. The class
treatment of common questions of law and fact is also superior to multiple individual actions
or piecemeal litigation in that it conserves the resources of the courts and the litigants, and
promotes consistency and efficiency of adjudication.
36.

Defendants have acted and failed to act on grounds generally applicable to the

Plaintiff and the other members of the Class in transmitting the wireless spam at issue,
requiring the Court's imposition of uniform relief to ensure compatible standards of conduct
toward the members of the Class.
37.

The factual and legal bases of Defendants' liability to Plaintiff and to the other

members of the Class are the same, resulting in injury to the Plaintiff and to all of the other
members of the Class as a result of the transmission of the wireless spam alleged herein.

COMPLAJNT

Plaintiff and the other Class members have all suffered harm and damages as a result of
Defendants' unlawful and wrongful conduct of transmitting wireless spam.
38.

There are many questions of law and fact common to the claims of Plaintiff

and the other members of the Class, and those questions predominate over any questions that
may affect individual members of the Class. Common questions for the Class include but are
not limited to the following:
(a)

Does the wireless spam Defendants transmitted violate 47 U.S.C.

(b)

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Are the Class members entitled to treble damages based on the
willfulness of Defendants7conduct?
FIRST CAUSE OF ACTION
(Violation of 47 U.S.C. 5 227)

39.

Plaintiff incorporates by reference the foregoing allegations as if fully set

forth herein.
40.

Defendants made unsolicited text calls, including the message in paragraphs

24 and 3 1, to the wireless telephone numbers of the Class. Each such text message call was
made using equipment that, upon information and belief, had the capacity to store or produce
telephone numbers to be called, using a random or sequential number generator.
41.

These text calls were made en masse and without the prior express consent of

the Plaintiff and the other members of the Class to receive such wireless spam.
42.

Defendants have, therefore, violated 47 U.S.C.

5 227(b)(l)(A)(iii).

As a result

3f Defendants7 conduct, the members of the Class are each entitled to, under section
227(b)(3)(B), a minimum of $500.00 in damages for each violation of such act.
43.

Because Defendants had knowledge that Plaintiff and members of the Class

lid not consent to the receipt of the aforementioned wireless spam, the Court should,
?ursuant to section 47 U.S.C.

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227(b)(3)(C), treble the amount of statutory damages

reco\crablc by thc I'laintiSi and the otl~er
~nanbers Ll~e
of
Cl,~ss.

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3

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U'IiIIRI~FOKI:, I'lailrutT Urcl L. Lusakin, on behalf of himself and thc Class prays fur
tlic

fc~llowing
1.z1it.C
I.

j

I/

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II
I1

An order certifyrng this case as 3 class ;ictitr~~ behalf of he Class
on

as defined o b c ~ eappointing Plaintiff Lusskin as the representative of
;
thc Class; and iippninting his counsel 3s class counsel;
?
.
,

An award oCactual and sltltulor)' damages.

3.

AII i~~junetion
rcqiliri~lg
Dcfindants to cease all wireless sparn
actir itics, and othenvisc protecting thc inter-cstsof thc Class:

4.

An ward of reri%on;~ble
attonleys'

5.

Such further and other relief the C ' O Ldeems reasonable and just.
I~

~ P and costs;
S

and

JURY DEMAKD

i'laint~tT~-equcsts by jury of all claims that can bc so tricd.
trial

v
nySean P. Ke~s
EDELSON MCGLIIKE LLP
One oftlie Attomrys for Plaintiff'
SlSAN RElS (SBN 1 X40.53)
' sret ~ ( < L ~ ~ C * / \ O P Icotn
EDELSON MCCiUlRE, LLP
3002 I Tomas Streel. Suite 300
Rancho Santa Margarita, California 02658
Tclephonc: (C)39)
459-2 123
Facsiniilc. (940)459-2 1 23

JAY EDELSON*
[e-mail])
RAFEY S. BALABANIAN*
([e-mail])
CHRISTOPHER L. DORE*
([e-mail])
EDELSON
MCGUIRE
LLC
350 North LaSalle Street, Suite 1300
Chicago, Illinois 60654
Telephone: [phone]
Fax: [phone]
SCOTT D. OWENS*
2000 E. Oakland Park Blvd., Suite 106
Ft. Lauderdale, FL 33306
Telephone: [phone]
Fax: [phone]

* Pro hac vice Application Forthcoming

COMPLAINT

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