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).

Download PDF
SEAN REIS (SBN 184044) sreis@edelson.com EDELSON MCGUIRE, LLP 3002 1 Tomas Street, Suite 300 Rancho Santa Margarita, California 92688 Telephone: (949) 459-2 124 Facsimile: (949) 459-2 123 JAY EDELSON* (jedelson@edelson.com) RAFEY S. BALABANIAN* (rbalabanian@edelson.com) CHRISTOPHER L. DORE* (cdore@edelson.com) EDELSON MCGUIRE LLC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Telephone: (3 12) 589-6370 Fax: (3 12) 589-6378 r [additional counsel appearing on signad% page] ' L - . 1I I * Pro hac vice Application Forthcoming a1 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. ) 1 Plaintiff, 1 1 v. GOOGLE, INC., a Delaware corporation, and SLIDE, INC., a Delaware corporation, Defendants. 28 1 ICOMPLAINT ) CLASS ACTION COMPLAINT ) ) 1 1 ) DEMAND FOR JURY TRIAL 1 1 2 CLASS ACTION COMPLAINT 1. Plaintiff Bret L. Lusskin, Jr. brings this class action complaint against 3 Defendants Google Inc. and Slide Inc. to stop Defendants' practice of making unsolicited 4 text message calls to cellular telephones, and to obtain redress for all persons injured by their 5 conduct. 6 knowledge as to himself and his own acts and experiences, and, as to all other matters, upon 7 information and belief, including investigation conducted by his attorneys. Plaintiff, for his class action complaint, alleges as follows upon personal 8 PARTIES 9 2. Plaintiff Bret L. Lusskin is a natural person and citizen of the State of Florida. 10 3. Defendant Google, Inc. is a corporation incorporated and existing under the 11 laws of the State of Delaware with its principal place of business located at 1600 12 Amphitheatre Parkway, Mountain View, California 94043. Google does business throughout 13 the United States, including in the State of California and this District. 14 4. Defendant Slide, Inc. is a corporation incorporated and existing under the laws 15 of the State of Delaware with its principal place of business at 301 Brannan St, 6th Floor, San 16 Francisco, California 94107. Slide is a wholly owned subsidiary of Defendant Google. Slide 17 does business throughout the United States, including in the State of California and this 18 District. 19 20 JURISDICTION & VENUE 5. The Court has subject matter jurisdiction over this action pursuant to 28 21 U.S.C. tj 1332 (d), because (a) at least one member of the putative class is a citizen of a state 22 different from Defendants, (b) the amount in controversy exceeds $5,000,000, exclusive of 23 interest and costs, and (c) none of the exceptions under that subsection apply to this action. 24 6. Venue is proper in this district under 28 U.S.C. 4 1391 (a)(l-2) as Defendants 25 reside in this District and a substantial part of the events giving rise to the claims asserted 26 here occurred in this District. 27 28 COMPLAINT 2 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 6 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) 5 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. 5 227(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. 11 3 I 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/ I/ 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* Cjedelson@edelson.com) RAFEY S. BALABANIAN* (rbalabanian@edelson.com) CHRISTOPHER L. DORE* (cdore@edelson.com) EDELSON MCGUIRE LLC 350 North LaSalle Street, Suite 1300 Chicago, Illinois 60654 Telephone: (3 12) 589-6370 Fax: (3 12) 589-6378 SCOTT D. OWENS* 2000 E. Oakland Park Blvd., Suite 106 Ft. Lauderdale, FL 33306 Telephone: (954) 306-8 104 Fax: (954) 337-0666 * Pro hac vice Application Forthcoming COMPLAINT 10

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?