Low v. Linkedin Corporation

Filing 16

RESPONSE (re 13 MOTION to Dismiss the Complaint; Memorandum of Points and Authorities ) filed byKevin Low. (Reese, Michael) (Filed on 8/1/2011)

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Michael R. Reese (State Bar No. 206773)
REESE RICHMAN LLP
875 Avenue of the Americas, 18th Floor
New York, New York 10001
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]
Sanford P. Dumain
Peter E. Seidman (admitted pro hac vice)
Charles Slidders
Melissa Ryan Clark
MILBERG LLP
One Pennsylvania Plaza, 49th Floor
New York, New York 10119-0165
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]

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Counsel for Plaintiff and the Proposed Class

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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KEVIN LOW, individually and on behalf of all
others similarly situated,

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Plaintiff,
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Case No. 5:11-cv-01468 LHK
PLAINTIFF'S OPPOSITION TO
DEFENDANT’S MOTION TO DISMISS
THE COMPLAINT

vs.
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ACTION FILED: March 28, 2011
LINKEDIN CORPORATION, a California
Corporation, and Does 1 to 50 inclusive,

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Defendants.

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

Date: September 15, 2011
Time: 1:30 P.M.
Judge: The Hon. Lucy Koh

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TABLE OF CONTENTS

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Page

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INTRODUCTION AND STATEMENT OF FACTS .................................................................. 1

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ARGUMENT ............................................................................................................................. 4

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I.

PLAINTIFF HAS ESTABLISHED ARTICLE III STANDING .......................... 4

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II.

LINKEDIN VIOLATED THE RIGHT TO PRIVACY ARISING FROM
CALIFORNIA’S STATE CONSTITUTION AND COMMON LAW ................. 6

III.

PLAINTIFF HAS ALLEGED A CLAIM FOR UNJUST ENRICHMENT .......... 8

IV.

PLAINTIFF STATES A CLAIM UNDER THE STORED
COMMUNICATIONS ACT................................................................................ 8

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A.

Provisions of the ECPA ......................................................................... 10

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B.

The Divulged Information is a “Stored Communication” Under the
SCA ....................................................................................................... 10

C.

LinkedIn Also Operated as a RCS and was Precluded from
Divulging Communications Regardless of Whether they were
“Stored” ................................................................................................. 12

D.

LinkedIn Impermissibly Divulged “Contents” ........................................ 13

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1.

Plaintiff’s Browsing History Is Also “Content” of a
Communication .......................................................................... 14

3.

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The User Identification Fits Squarely Within the Definition
of Content .................................................................................. 14

2.

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Records Cannot Be Disclosed When Accompanied by
Content....................................................................................... 15

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E.

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V.

LINKEDIN VIOLATED CALIFORNIA CONSUMER PROTECTION
LAWS ............................................................................................................... 18
A.

Plaintiff Has Adequately Pleaded Lost Money or Property for the
Purpose of the UCL and FAL ................................................................. 18

B.

Plaintiff Alleged Reliance for the purpose of UCL and CLRA ............... 20

C.

Plaintiff Properly Alleged UCL Unlawful, Fraudulent, or Unfair
Conduct ................................................................................................. 20

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The Third Parties Were Not an “Addressee or Intended Recipient”
of the Divulged Information ................................................................... 17

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1.

Plaintiff Properly Pleaded UCL Unlawful Conduct ..................... 20

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2.

Plaintiff Properly Pleaded UCL Fraudulent Conduct................... 20

Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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3.
D.

Plaintiff Properly Pleaded UCL Unfair Conduct ......................... 21

Plaintiff is a Consumer Who Purchased a Service From LinkedIn .......... 22

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1.

Plaintiff is a “Consumer” under the CLRA ................................. 22

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2.

LinkedIn is a “Service” under the CLRA .................................... 23

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E.

Plaintiff Alleged Breach of Contract Damages ....................................... 24

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F.

LinkedIn Converted Plaintiff’s Property................................................. 24

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CONCLUSION ........................................................................................................................ 25

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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TABLE OF AUTHORITIES

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Page(s)
CASES
Ali v. Fasteners for Retail, Inc.,
544 F. Supp. 2d 1064 (E.D. Cal. 2008)................................................................................ 24
Berry v. Am. Express Publ’g, Inc.,
147 Cal. App. 4th 224 (2007) .............................................................................................. 23
Boon Rawd Trading Int’l Co. v. Paleewong Trading Co.,
688 F. Supp. 2d 940 (N.D. Cal. 2010) ............................................................................24, 25

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Camacho v. Auto. Club of S. Cal.,
142 Cal. App. 4th 1394 (2006) ............................................................................................ 21
Columbia Pictures, Inc. v. Bunnell,
245 F.R.D. 443 (C.D. Cal. 2007)......................................................................................... 11
Council of Ins. Agents & Brokers v. Molasky-Arman,
522 F.3d 925 (9th Cir. 2008) ................................................................................................. 4

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Crispin v. Christian Audigier, Inc.,
717 F. Supp. 2d 965 (C.D. Cal. 2010) ................................................................................. 12
Crowley v. CyberSource Corp.,
166 F. Supp. 2d 1263 (N.D. Cal. 2001) ..........................................................................11, 18
Danvers Motor Co. v. Ford Motor Co.,
432 F.3d 286 (3d Cir. 2005) .................................................................................................. 4

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Davis v. Passman,
442 U.S. 228 (1979).............................................................................................................. 5
Doe 1 v. AOL LLC,
719 F. Supp. 2d 1102 (N.D. Cal. 2010) ..........................................................................19, 20
Drum v. San Fernando Valley Bar Ass’n,
182 Cal. App. 4th 247 (2010) .............................................................................................. 21
Fairbanks v. Super. Ct.,
46 Cal. 4th 56 (2009) .......................................................................................................... 23
Ferrington v. McAfee, Inc.,
No. 10-1455, 2010 WL 3910169 (N.D. Cal. Oct. 5, 2010)................................................... 23

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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Folgelstrom v. Lamps Plus Inc.,
195 Cal. App. 4th 986 (2011) ................................................................................................ 7
Forsher v. Bugliosi,
26 Cal. 3d 792 (1980) ......................................................................................................... 22
Fraser v. Nationwide Mut. Ins. Co.,
352 F.3d 107 (3d Cir. 2003) ................................................................................................ 18
Gilmore v. Union Pac. R.R. Co.,
No. 09-2180, 2009 U.S. Dist. LEXIS 111740 (E.D. Cal. Dec. 1, 2009) ................................. 8
Hill v. MCI WorldCom Commcn’s, Inc.,
120 F. Supp. 2d 1194 (S.D. Iowa 2000) .............................................................................. 16
Hill v. NCAA,
865 P.2d 633 (Cal. 1994) ................................................................................................ 7, 24
In re DoubleClick Inc. Privacy Litig.,
154 F. Supp. 2d 497 (S.D.N.Y. 2001)...............................................................................................6
In re Facebook Privacy Litig.,
No. 10-02389, 2011 WL 2039995 (N.D. Cal. May 12, 2011) ......................................... 4, 17
Jenkins v. McKeithen,
395 U.S. 411 (1969).............................................................................................................. 4
Jessup-Morgan v. America Online, Inc.,
20 F. Supp. 2d 1105 (E.D. Mich. 1998) ............................................................................... 16

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Konop v. Hawaiian Airlines, Inc.,
302 F.3d 868 (9th Cir. 2002) ........................................................................................... 8, 11
Krottner v. Starbucks Corp.,
628 F.3d 1139 (9th Cir. 2010) ............................................................................................... 5
La Court v. Specific Media, Inc.,
No. 10-1256, 2011 WL 2473399 (C.D. Cal. Apr. 28, 2011) .................................................. 6

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Lungren v. Deukmejian,
45 Cal. 3d 727 (1988) ........................................................................................................... 7
Meaunrit v. ConAgra Foods Inc.,
No. 09-2220, 2010 WL 2867393 (N.D. Cal. July 20, 2010)................................................... 5
NAACP v. State of Alabama,
357 U.S. 449 (1958).............................................................................................................. 7

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Pisciotta v. Old Nat’l Bancorp,
499 F.3d 629 (7th Cir. 2007) ............................................................................................. 5, 6
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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Quintero Family Trust v. OneWest Bank, F.S.B.,
No. 09-1561, 2010 WL 392312 (S.D. Cal. Jan. 27, 2010).................................................... 20
Robins v. Spokeo, Inc.,
No 10-5306, 2011 WL 597867 (C.D. Cal. Jan. 27, 2011) ...................................................... 6
Ruiz v. Gap, Inc.,
540 F. Supp. 2d 1121 (N.D. Cal. 2008) ................................................................................. 7
S. Bay Chevrolet v. Gen. Motors Acceptance Corp.,
72 Cal. App. 4th 861 (1999)................................................................................................ 20
Sanchez v. Bear Stearns Residential Mortg. Corp.,
No. 09-2056, 2010 WL 1911154 (S.D. Cal. May 11, 2010)................................................. 20
Shin v. BMW of N. Am.,
No. 09-0398, 2009 U.S. Dist. LEXIS 67994 (C.D. Cal. July 16, 2009) ..................................... 19
SOAProjects, Inc. v. SCM Microsystems, Inc.,
No. 10-1773, 2010 U.S. Dist. LEXIS 133596 (N.D. Cal. Dec. 7, 2010)................................. 8
Taus v. Loftus,
40 Cal. 4th 683 (2007) .......................................................................................................... 8
United States v. Councilman,
418 F.3d 67 (1st Cir. 2005) ................................................................................................. 12
United States v. Davis,
Crim. No. 10-339, 2011 WL 2036463 (D. Or. May 24, 2011) ............................................. 15
United States v. Forrester,
512 F.3d 500 (9th Cir. 2008) .................................................................................... 14, 15, 16

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Vess v. Ciba-Geigy Corp. U.S.A.,
317 F.3d 1097 (9th Cir. 2003) ............................................................................................. 21

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STATUTES

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18 U.S.C. § 2510(8).................................................................................................................. 13

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18 U.S.C. § 2510(12) ................................................................................................................ 10

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18 U.S.C. § 2510(15) ................................................................................................................ 10

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18 U.S.C. § 2510(17) ................................................................................................................ 11

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18 U.S.C. § 2702 .................................................................................................................17, 18
18 U.S.C. § 2702(a)(1) ............................................................................................................. 10

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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18 U.S.C. § 2702(a)(2) .................................................................................................. 10, 12, 18

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18 U.S.C. § 2702(a)(3) ............................................................................................................. 15

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18 U.S.C. § 2702(c)(1) ............................................................................................................. 18

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18 U.S.C. § 2711(2).................................................................................................................. 10

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Cal. Civ. Code 1761(b) ............................................................................................................. 23
Cal. Civ. Code 1770(a) ............................................................................................................. 22

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Cal. Civ. Code §1760 (West 2009) ........................................................................................... 24
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Cal. Civ. Code § 1761(d) .......................................................................................................... 22
California Civil Code Section 1750 .......................................................................................... 20

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OTHER AUTHORITIES

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1986 U.S.C.C.A.N. 3555 .......................................................................................................... 13

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13A Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure
§ 3531.4 (3d ed. 2011) .......................................................................................................... 4

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Federal Trade Commission Preliminary Staff Report, Protecting Consumer Privacy in an
Era of Rapid Change (Dec. 2010) ......................................................................................... 2

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H.R. Rep. No. 99-647 (1986) ......................................................................................... 11, 14, 15

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Ian C. Ballon, 1 E-Commerce & Internet Law § 26.01 (2010) ..................................................... 3

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John T. Soma, et al., Corporate Privacy Trend: The “Value” of Personally Identifiable
Information (“PII”) Equals the “Value” of Financial Assets, 15 Rich. J.L. & Tech.
11 (2009) ............................................................................................................................ 19

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Luiz Salazar, Privacy And Bankruptcy Law, Part I: Technology Explosion Creates
Personal Privacy Tension, Am. Bankr. Inst. J. (Nov. 2006) ................................................ 19
Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s
Guide to Amending It, 72 Geo. Wash. L. Rev. 1208 (Aug. 2004) ...................................12, 13
Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act:
The Big Brother That Isn’t, 97 Nw. U. L. Rev. 607 (2003) .................................................. 13

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Pamela Jones Harbour, FTC Roundtable Series I on Exploring Privacy (Dec. 7, 2009) ............. 19
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Paul M. Schwartz, Property, Privacy, and Personal Data,
117 Harv. L. Rev. 2055 (May 2004).................................................................................... 19

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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Richard S. Murphy, Property Rights in Personal Information: An Economic Defense of
Privacy, 84 Geo. L.J. 2381 (July 1996) ............................................................................... 19

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S. Rep. No. 99-541 (1986), reprinted in 1986 U.S.C.C.A.N. 3555 .............................................. 9

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Thorsten Holz, et al., Learning More About the Underground Economy: A Case Study of
Keyloggers and Dropzones, University of Mannheim, Laboratory for Dependable
Systems (2008) .................................................................................................................. 19

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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Plaintiff Kevin Low (“Plaintiff”) respectfully submits the following in opposition to the

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motion to dismiss filed by defendant LinkedIn Corp. (“Defendant”). Defendant’s motion is without

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merit and should be denied.

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INTRODUCTION AND STATEMENT OF FACTS

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Consumers who use the Internet have a right to privacy and expect that businesses (and the

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government) are not watching their every move. This right to privacy is so important that it is

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protected by California’s Constitution, federal law, common law, and the state consumer

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protection statutes at issue here. Consumers use the Internet, often from the sanctity of their own

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homes, to seek advice on personal and sensitive matters such as abortion, hemorrhoids, sexually

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transmitted disease, drug rehabilitation, or care for the elderly, to search for jobs, seek out new

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romantic partners, engage in political activity; in fact, to do more or less anything. Consumers do

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not expect this information to be broadcast to complete strangers.

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LinkedIn is a web-based social networking site that allows consumers to share career

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information about themselves and to “link” to one another via e-mail and instant messaging

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services. Unfortunately for LinkedIn users, Defendant secretly shares personal information that

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Plaintiff and other LinkedIn users have not chosen to share with complete strangers, thereby

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violating the users’ right to privacy. Defendant does this to increase its profits at the expense of its

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consumers.

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Specifically, upon sign-up, LinkedIn assigns each consumer a unique User Identification

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number (“User Identification”) that is associated with the consumer’s name. ¶¶ 14-19.1 LinkedIn is

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configured such that every time a link or advertisement appears on the consumer’s LinkedIn

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webpage, the User Identification is disclosed to third-parties (advertisers, data aggregators, and the

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like) along with the consumer’s Internet search history as recorded by secret tracking devices that

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third parties place on the consumers’ computer.

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When a user clicks a link on a LinkedIn webpage, LinkedIn sends an “HTTP Referrer”

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header which sends information about where the click is coming from, including what precise

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“¶_” are references to the paragraphs of the complaint filed on March 28, 2011 (Dkt. 1).

Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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URL2 (web page) the consumer was viewing at the time of the click. ¶ 16. Unbeknownst to users,

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LinkedIn explicitly includes users’ User Identification as a “URL parameter,” allowing the third

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party to identify the user. Id. In addition, because LinkedIn’s URLs contain the User Identification

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of the member whose profile is being viewed, the third party is also able to ascertain which

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LinkedIn member’s profile the user was viewing when the click was made. Id. This process allows

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online marketers and other data aggregators frightening access to the most intimate details of the

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users’ lives—allowing third parties to connect personal, specific identities with the users’ browsing

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histories.

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LinkedIn engages in this conduct because the personal information at issue here is a

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valuable commodity, sold in the marketplace. ¶¶ 20-23. Multiple marketers have touted the high

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market value of this information in targeting consumers based on the data mined from their

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computers and mobile devices, giving credence to the statement that “the more information that is

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known about a consumer, the more a company will pay to deliver a precisely-targeted

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advertisement to him.” Federal Trade Commission Preliminary Staff Report, Protecting Consumer

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Privacy in an Era of Rapid Change (Dec. 2010), at 24 (“FTC Report”). ¶ 21.

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One data aggregator, Audience Science, states that its work involves “recording billions of

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behavioral events daily and reaching over 385 million unique Internet users” and then making such

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data available to its clients: “web publishers, marketers, networks, exchanges, and agencies[,] to

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create intelligent audience segments to connect people with relevant advertising driving the

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transition to data-driven audience marketing online.” ¶ 21.

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On March 7, 2011, the Wall Street Journal published an article under the headline,

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“Web’s Hot New Commodity: Privacy,” in which it highlighted a company called Allow Ltd.,

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one of nearly a dozen companies that offer to sell people’s personal information on their behalf,

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and pay 70% of the sale proceeds to the individual. One Allow Ltd. customer received payment

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of $8.95 for letting Allow tell a credit-card company he was shopping a new credit card. Id.

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A URL is a Uniform Resource Identifier that specifies where a known resource is available and
the mechanism for retrieving it.

Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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Defendant’s motion to dismiss is based on two arguments, both of which are wrong. First,

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Defendant argues that it is only disclosing “a non-sensitive number randomly assigned to plaintiff

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by LinkedIn.” As alleged in the Complaint, however, expert studies have shown first and last

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names and other personal information (including address, sexual orientation, and income level) can

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be easily and quickly determined from User Identification numbers. Accordingly, because of

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Defendant’s conduct, third-parties who are complete strangers to the consumer can link the

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consumer name with that person’s search history, revealing sensitive and potentially embarrassing

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information.

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Second, Defendant argues that even if additional personal information is being disclosed,

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such personal information is not “property,” money, or otherwise of value. In fact, the personal

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information at issue in this case is part of a robust, monetized commerce that is worth hundreds of

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millions of dollars. By collecting personal information from the computers and mobile devices,

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“Websites and stores can, therefore, easily buy and sell information on visitors with the intention

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of merging behavioral with demographic and geographic data in ways that will create social

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categories that advertisers covet and target with ads tailored to them or people like them.” ¶ 20

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(quoting Joseph Turow, et al., Americans Reject Tailored Advertising and Three Activities that

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Enable It (Sept. 29, 2009), available at http://ssrn.com/abstract=1478214). Similarly, “Internet

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merchants may obtain a great deal of valuable marketing information from visitors who merely

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window-shop at their electronic storefronts. . . . This data may also be licensed or sold to third

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parties.” Ian C. Ballon, 1 E-Commerce & Internet Law § 26.01, at 26-7 (2010).

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Thus, LinkedIn strips individuals of the common law and constitutional right to control

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the personal information they reveal about themselves and to whom they reveal it. It also

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improperly obtains and divulges personal and embarrassing information to data aggregators who

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treat such information as a commodity that is valued by reference to a robust market.

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Accordingly, Defendant’s motion to dismiss must be denied.

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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ARGUMENT
I.

PLAINTIFF HAS ESTABLISHED ARTICLE III STANDING

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Article III standing derives from separation of powers doctrine and is intended to prevent

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the judiciary from encroaching on the other branches by deciding political issues of general

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applicability. To this end, Article III standing limits the court’s subject matter jurisdiction to cases

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or controversies that are “justiciable,” that is, arising from a constitutional, statutory or common

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law violation of an individual right and, as such, capable of being appropriately decided by

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resolution of the particular case or controversy before the court, as opposed to issues that are

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political, the resolution of which are generally applicable, and properly decided by the other

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branches. See 13A Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure

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§ 3531.4 (3d ed. 2011) (“The choice is made between the importance of having the issues decided

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by the courts and the importance of leaving the issues for resolution by other means.”).

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Hence, the “standing question . . . is whether the constitutional or statutory provision on

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which the claim rests properly can be understood as granting persons in the plaintiff’s position a

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right to judicial relief.” In re Facebook Privacy Litig., No. 10-02389, WL 2039995, at *4 (N.D.

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Cal. May 12, 2011) (Ware, J.) (internal quotations and citations omitted) (holding that plaintiffs

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had standing); see also Jenkins v. McKeithen, 395 U.S. 411, 423 (1969) (“In this sense, the concept

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of standing focuses on the party seeking relief, rather than on the precise nature of the relief

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sought.”).

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As the United States Supreme Court has held: “[i]njury-in-fact is not Mount Everest.”

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Danvers Motor Co. v. Ford Motor Co., 432 F.3d 286, 294 (3d Cir. 2005). To the contrary, it

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suffices for federal standing purposes to allege some specific, “identifiable trifle” of injury. Id.; See

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Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 932 (9th Cir. 2008) (in

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affirming the plaintiff’s standing, the Ninth Circuit court noted that the U.S. Supreme Court “has

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allowed important interests to be vindicated by plaintiffs with no more at stake in the outcome of

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an action than a fraction of a vote, a $5 fine and costs, and a $1.50 poll tax . . . . ‘The basic idea

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that comes out in numerous cases is that an identifiable trifle is enough to fight out a question of

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principle; the trifle is the basis for standing and the principle provides the motivation.’”)
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
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(emphasis added). Here, where constitutional protected rights to privacy have been violated,

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Plaintiff’s alleged injuries are certainly more than such a “trifle.” ¶¶ 1-2; 20-23.

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The determination of whether a plaintiff has standing is separate and preliminary to the

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issue of whether the plaintiff pleaded a cause of action. Meaunrit v. ConAgra Foods Inc., No. 09-

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2220, 2010 WL 2867393, at *4 (N.D. Cal. July 20, 2010) (“While [defendant] may indeed be

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correct that there is no cognizeable cause of action in this case - i.e., there was no actionable

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misrepresentation - this is not the same thing as finding the plaintiff lacks standing. Plaintiff

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alleges an injury, and alleges that it was caused by defendant’s actions. Asking whether or not she

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has a legally cognizable claim is not the same thing as asking whether she has suffered an

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injury in fact.”) (emphasis added). See also Davis v. Passman, 442 U.S. 228, 239 n.18 (1979)

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(court of appeals improperly confused the question of standing with the question of whether

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plaintiff had a cause of action). Sufficiently alleging injury in fact creates a justiciable issue that

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allows the court to advance to the merits inquiry.

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Plaintiff’s allegations of personal injury arising from LinkedIn’s misconduct raise a

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justiciable issue that the court has subject matter jurisdiction to decide. There is no constitutional

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or factual basis for depriving Plaintiff access to this Court, the only venue for resolution available

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to them. The best Defendant can do in the face of these well-established principles is to ignore

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allegations that run counter to its argument. Def. Br. at 6-8. In fact, the Complaint alleges, with

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specificity, legal harm sufficient to confer standing. ¶¶ 1-2, 20-23.

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The recent Ninth Circuit case of Krottner v. Starbucks Corp., 628 F.3d 1139 (9th Cir.

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2010), is on point here. In Krottner, plaintiffs alleged that Starbucks had violated their privacy in

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that it failed to encrypt personal information regarding plaintiffs on a company laptop that was

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stolen from a Starbucks store. Defendant moved to dismiss, arguing that the plaintiffs did not have

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Article III standing. The Ninth Circuit rejected this argument, stating: “we hold that Plaintiffs-

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Appellants, whose personal information has been stolen but not misused, have suffered an injury

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sufficient to confer standing under Article III, Section 2 of the U.S. Constitution.” Id. at 1140; see

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also Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 634 (7th Cir. 2007) (reasoning that person who

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Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
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had his private information taken without plaintiff’s permission, but not misused, had standing

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under Article III).

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Hence, under the governing authority of Krottner, Plaintiff clearly has Article III

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standing. Accordingly, Defendant’s argument to the contrary should be denied.3

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II.

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LINKEDIN VIOLATED THE RIGHT TO PRIVACY ARISING FROM
CALIFORNIA’S STATE CONSTITUTION AND COMMON LAW

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Defendant tries to trivialize the effects of LinkedIn’s invasion of privacy by suggesting that

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it is nothing more than disclosure of Plaintiff’s LinkedIn User Identification, which Defendant

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describes as a “a non-sensitive number randomly assigned to plaintiff by LinkedIn.” Def. Br. at 20.

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The Complaint, however, clearly alleges not just that LinkedIn’s invasion of privacy is far more

11

serious than disclosure of a User Identification, but also that it amounts the very type of “serious”

12

invasion of privacy that Article 1, Section 1 of California’s Constitution, as amended, was intended

13

to prevent.

14

It was voters who were alarmed that “[c]omputerization of records makes it possible to

15

create ‘cradle-to-grave’ profiles on every American” and believing that such “data collecting is

16

threatening to destroy our traditional freedom” who amended California Constitution’s Article 1,

17

Section 1 (“the Privacy Initiative”) to recognize a right to privacy. Official Ballot Pamphlet at 26.

18
19
20
21
22
23
24
25
26
27
28

3

Defendant’s reliance on La Court v. Specific Media, Inc., No. 10-1256, 2011 WL 2473399 (C.D.
Cal. Apr. 28, 2011), is misplaced. (Def. Br. at 7). Unlike Plaintiff here, the Specific Media
plaintiffs referred to a host of facts, including facts pertaining to the value of their personal
information, “not contained in their [c]omplaint at all.” Id. at *4 (emphasis added). An amended
complaint was filed shortly after the dismissal without prejudice and took into account the
admonitions of the Court, which in no way foreclosed the possibility of such theories of harm
giving rise to Article III standing. The Specific Media Court recognized the viability in the abstract
of such concepts as “opportunity costs,” “value-for-value exchanges,” “consumer choice,” and
other concepts referred to in plaintiffs’ opposition brief, and therefore allowed the plaintiffs to
amend their complaint. Id.; see also id. at *6 (“It is not obvious that [p]laintiffs cannot articulate
some actual or imminent injury in fact”).
Defendant’s citation to Robins v. Spokeo, Inc., No 10-5306, 2011 WL 597867, at *1 (C.D. Cal.
Jan. 27, 2011) (Def. Br. at 7), is also inapposite because, as Defendant acknowledges, id., that case
dealt with concern that defendant’s website would adversely affect him in future, whereas Plaintiff
in this case alleges past, current and ongoing injury. LinkedIn’s reliance on the non-binding case of
In re DoubleClick Inc. Privacy Litigation, 154 F. Supp. 2d 497 (S.D.N.Y. 2001) (Def. Br. at 7), is also
misplaced because the DoubleClick court did not analyze the issue of standing.

Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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1

This Court should interpret the Privacy Initiative to give effect to the intent of California voters,

2

which was expressed in the Privacy Initiative as follows:4
The principal focus of the Privacy Initiative is readily discernable. The Ballot
Argument warns of unnecessary information gathering, use and dissemination by
public and private entities -- images of “government snooping,” computer stored
and generated “dossiers” and “‘cradle-to-grave’ profiles on every American”
dominate the framers’ appeal to the voters.… The evil addressed is … business …
“collecting and stockpiling unnecessary information … and misusing information
gathered for one purpose in order to serve other purposes or to embarrass …”

3
4
5
6
7
8

Hill v. NCAA, 865 P.2d 633, 645 (Cal. 1994) (quoting Official Ballot Pamphlet at 26-27). Plaintiff

9

alleges that LinkedIn knowingly linked its users’ identifications to secret tracking devicess,

10

thereby enabling the “collecting and stockpiling” of personal information, not submitted for that

11

purpose, to create “dossiers” about the Plaintiff and Class Members for sale to marketers. This is

12

the precisely the type of conduct California voters intended to prevent.5

13

Defendant’s reliance on Ruiz v. Gap, Inc., 540 F. Supp. 2d 1121 (N.D. Cal. 2008) and

14

Folgelstrom v. Lamps Plus Inc., 195 Cal. App. 4th 986 (2011), and Hill, supra, is misplaced. Def.

15

Br. at 20. Those cases involved disclosure of a single piece of unlinked information (social security

16

numbers or ZIP codes). In contrast, LinkedIn has disclosed its users’ identifications in conjunction

17

with their browsing history, thereby enabling third parties to “stockpile” information about the

18

user’s most personal habits and preferences (derived from their browsing history) and create the

19

type of personal “dossier” the Privacy Initiative was intended to prevent.6

20

4

21
22
23
24
25
26
27
28

See Lungren v. Deukmejian, 45 Cal. 3d 727, 740 n.14 (1988) (“The rule that the ballot pamphlet
is an important aid in determining the intent of the voters in adopting a constitutional amendment
or statute is too well settled to require extensive citation of authority.”).
5
If the Court questions the “seriousness” of LinkedIn’s conduct, it should consider its
ramifications. For instance, the voters of California intended that the right to privacy also protect
“our freedom to associate with the people we choose.” Official Ballot Pamphlet at 28. The
Supreme Court has also “recognized the vital relationship between freedom to associate and
privacy in one’s associations.” NAACP v. State of Alabama, 357 U.S. 449, 462 (1958)
(“Inviolability of privacy in group association may in many circumstances be indispensable to
preservation of freedom of association, particularly where a group espouses dissident beliefs.”).
Here, LinkedIn is disclosing a User Identification connected to a web browsing history that may
disclose information about the users’ associations, including membership in, or an interest in,
dissident groups.
6
Defendant’s contention with respect to the common law invasion of privacy claim, that its
conduct is not “highly offensive to a reasonable person,” also is unavailing. It goes without
saying that a reasonable person would be highly offended by somebody eavesdropping on their
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

-7-

1

III.

PLAINTIFF HAS ALLEGED A CLAIM FOR UNJUST ENRICHMENT

2

LinkedIn asserts that Plaintiff’s unjust enrichment claim should be dismissed because

3

“there is no independent cause of action for unjust enrichment in California.” Def. Br. at 24. This

4

Court, however, has recently noted that although it is “technically true” that there is no cause of

5

action for unjust enrichment in California, “courts have held that unjust enrichment is equivalent

6

to restitution and have allowed litigants to seek restitution using an unjust enrichment claim.”

7

SOAProjects, Inc. v. SCM Microsystems, Inc., No. 10-1773, 2010 U.S. Dist. LEXIS 133596, at

8

*24-25 (N.D. Cal. Dec. 7, 2010) (Koh, J.) (internal citations omitted).

9

Defendant’s assertion that the unjust enrichment claim should be dismissed because the

10

Plaintiff also alleges a breach of an express contract, Def. Br. at 24, is meritless. As this Court

11

noted, “restitution may be awarded in lieu of breach of contract damages when the parties had an

12

express contract, but it was procured by fraud or is unenforceable or ineffective for some

13

reason.” SOAProjects, 2010 U.S. Dist. LEXIS 133596, at *25 (internal quotations omitted).

14

Accordingly, the motion to dismiss the unjust enrichment claim should be denied.

15

IV.

PLAINTIFF STATES A CLAIM UNDER THE STORED COMMUNICATIONS ACT

16

Defendant attempts to escape liability for its misconduct by taking advantage of the

17

technical complexities of the Electronic Communications Privacy Act (“ECPA”) and the Stored

18

Communications Act (“SCA” or the “Act”). See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868,

19

874 (9th Cir. 2002) (“[T]he intersection of [the Wiretap and Stored Communications Acts] ‘is a

20

complex, often convoluted area of law.’ . . . Courts have struggled to analyze problems involving

21

modern technology within the confines of this statutory framework . . .”) (citations omitted). In

22
23
24
25
26
27
28

Internet browsing, an activity that is often conducted in the privacy of one’s home and behind
closed doors, on a computer that is password protected, or on mobile devices—perhaps also
password protected and, in all cases, inaccessible to public view.
In any event, whether LinkedIn’s conduct is “highly offensive” or a serious invasion of privacy
involves factual issues not ordinarily decided on a motion to dismiss. See Gilmore v. Union Pac.
R.R. Co., No. 09-2180, 2009 U.S. Dist. LEXIS 111740, at *22-23 (E.D. Cal. Dec. 1, 2009)
(“Whether plaintiff had a reasonable expectation of privacy in the circumstances and whether
defendant’s conduct constituted a serious invasion of privacy are mixed questions of law and
fact.”); Taus v. Loftus, 40 Cal. 4th 683, 737 (2007) (“The question remains whether a trier of fact
properly could determine that the alleged conduct here at issue constituted ‘highly offensive
conduct’ that can be the basis for tort liability”).
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

-8-

1

enacting the SCA, however, the Senate made clear its intention to protect users’ communications

2

as technology evolved, stating: “the law must advance with technology” to avoid “promot[ing]

3

the gradual erosion of this precious right [to privacy].” S. Rep. No. 99-541, at 5 (1986), reprinted

4

in 1986 U.S.C.C.A.N. 3555, 3559. Despite this express intention, Defendant argues for dismissal

5

of Plaintiff’s SCA claim. However, as seen below, Defendant’s arguments are in error and

6

should be denied.

7

First, LinkedIn presents a tortured interpretation of the SCA that would effectively nullify

8

the statute—a result Congress obviously never intended. It argues that any communication that is

9

wrongfully divulged via a transmission is outside of the scope of the SCA, because the SCA only

10

applies to stored communications, not transmissions. Def. Br. at 9-10. That argument would render

11

the SCA meaningless, as all communications under the SCA must somehow be “divulged,” i.e.,

12

shared with a third party via a transmission. Furthermore, Defendant’s arguments regarding

13

electronic storage ignore Plaintiff’s allegations that LinkedIn functions not only as an “electronic

14

communications service” (ECS), which can be held liable for divulging communications that are

15

“stored” by the provider, but also as a “remote computing service” (RCS), for which liability

16

attaches when the provider divulges communications that it “carried or maintained.”

17

Second, LinkedIn denies that any of the divulged information qualifies as “contents” of the

18

communication. “Contents,” however, are defined broadly by the ECPA, and include any data or

19

information that goes to the “substance, meaning, or purport” of a communication. In light of the

20

context alleged here, wherein third party advertisers and data aggregators are using users’

21

information to create demographic profiles and monitor web use patterns, the identity of the user is

22

the exact “substance” or “meaning” that the third parties hope to attain. Moreover, Defendant does

23

not even address the alleged disclosure of Plaintiff’s last-viewed page, which is undoubtedly the

24

“content” of a communication.

25

Third, LinkedIn argues that, as the service provider for the communications, it was

26

permitted to access the stored communications. Def. Br. at 10-11. LinkedIn, however, did not

27

merely access communications, it wrongfully divulged them to third parties.

28
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

-9-

1

Finally, Defendant claims, speciously, that the third parties were “addressees or intended

2

recipients” of Plaintiff’s personal information. Plaintiff, however, did not know this information

3

was being divulged, let alone did he “address” or “intend” to disclose the information to third

4

parties. LinkedIn’s implication that the third parties are “addressees or intended recipients”

5

because LinkedIn, not Plaintiff, intended to send them the divulged information assumes that

6

Plaintiff is to have no effective control over what information he sends to whom. Such a reading is

7

clearly contradictory to the entire purpose and intent (as well as the plain language) of the SCA,

8

which plainly prohibits service providers from divulging users’ information.

9

For these reasons, as discussed in detail herein, Plaintiff’s SCA claim must be upheld.

10

A.

11

The ECPA protects electronic communications from interception during transfer (via Title

12

I, the Wiretap Act) and from unauthorized access or disclosure (via Title II, the SCA). The SCA,

13

the portion of the ECPA applicable here, prohibits ECSs, which provide “the ability to send or

14

receive wire or electronic communications,” 18 U.S.C. § 2510(15), from divulging “the contents of

15

a communication while in electronic storage,” 18 U.S.C. § 2702(a)(1) (emphasis added). An RCS,

16

which provides “computer storage or processing services by means of an electronic

17

communications system,” 18 U.S.C. § 2711(2), is prohibited from divulging “the contents of any

18

communication which is carried or maintained on that service . . . ,” 18 U.S.C. § 2702(a)(2)

19

(emphasis added). “[E]lectronic communication[s]” are defined broadly under the ECPA to extend

20

beyond e-mails and other messages and include “any transfer of signs, signals, writing, images,

21

sounds, data, or intelligence of any nature . . . .” 18 U.S.C. § 2510(12).

Provisions of the ECPA

22

B.

23

Defendant attempts to evade liability under the SCA by contending that “the [SCA]

24

protects only electronic communications held in storage” and not the alleged “transmissions of

25

data,” for which Defendant claims the Wiretap Act would apply. Def. Br. at 9 (emphasis in

26

original). But “electronic storage” includes even the “temporary [or] intermediate storage” of a

27

communication that is “incidental to the electronic transmission thereof,” as well as storage for

28

“backup protection.” 18 U.S.C. § 2510(17). Congress specifically disavowed any “inten[tion] to

The Divulged Information is a “Stored Communication” Under the SCA

Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 10 -

1

limit the term[] ‘electronic storage’. . . to any particular medium of storage.” H.R. Rep. No. 99-

2

647, at 39 (1986).

3

The divulged communications did not, as Defendant seems to suggest, exist in some

4

ethereal location in “cyber space.” The User Identification and last-viewed page were stored on

5

LinkedIn’s servers and/or carried on its network7--a fact which Defendant does not deny. LinkedIn

6

acknowledges in its prospectus that it stores information, stating: “Our solutions involve the

7

storage and transmission of members’ and customers’ information, some of which may be private,

8

and security breaches could expose us to a risk of loss of this information, which could result in

9

potential liability and litigation.” LinkedIn Corp., Prospectus (Form 424B4) (May 18, 2011) at 14

10

(emphasis added). Moreover, Defendant’s own authority (Def. Br. at 9) makes clear that that the

11

communications were divulged while “in storage.” See Columbia Pictures, Inc. v. Bunnell, 245

12

F.R.D. 443, 450 (C.D. Cal. 2007) (“The Ninth Circuit has held that the Wiretap Act applies only to

13

‘acquisition contemporaneous with transmission[.]’. . . Communications are in ‘electronic storage’

14

under the SCA, and outside the scope of the Wiretap Act, even where the storage is transitory and

15

lasts for only a few seconds.”) (citations omitted).

16

In the face of this authority, the SCA’s plain language, and its own admission in its

17

prospectus, Defendant fixates on Plaintiff’s allegation that LinkedIn wrongfully “transmitted” user

18

information to third parties. Def. Br. at 9. But the Complaint alleges the “transmission” of

19

information only insofar as LinkedIn improperly sent or divulged user information to third parties.

20

See ¶¶ 2, 15-18. The Complaint makes no allegations that this information was “intercepted,” but

21

instead alleges that LinkedIn divulged the contents of communications already in its possession.8

22

7

23
24
25
26
27
28

See Konop, 302 F.3d at 874, 876, 879 n.6 (“A website consists of electronic information stored
by a hosting service computer or ‘server’”; “website owners . . . transmit electronic documents to
servers, where the documents are stored. If a user wishes to view the website, the user requests that
the server transmit a copy of the document to the user’s computer”; “electronic communications
are stored at various junctures in various computers between the time the sender types the message
and the recipient reads it.”).
8

See, e.g., Crowley v. CyberSource Corp., 166 F. Supp. 2d 1263, 1269 (N.D. Cal. 2001) (finding
that the electronic communication did not fall within the Wiretap Act because “[the user] sent
certain information to [the service provider], which then conveyed it to [a third party]. . . . [The
service provider] did not, however, ‘intercept’ the communication within the meaning of the
Wiretap Act, because [the Service Provider] did not acquire it using a device other than the drive
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 11 -

1

Courts have expressly rejected Defendant’s suggestion that documents are not “in storage” pre- or

2

post-transmission.9 The SCA would have no effect if every communication that was divulged via

3

transmission fell outside of its scope.10

4
C.

5

LinkedIn Also Operated as a RCS and was Precluded from Divulging
Communications Regardless of Whether they were “Stored”

6

Even if LinkedIn prevailed on its argument that the communications it divulged were not in

7

“electronic storage,” it would not be relieved of SCA liability because Plaintiff also alleges that

8

LinkedIn is an RCS (¶ 43),11 as to which the “electronic storage” requirement is inapplicable.

9

Rather, an RCS can be held liable for divulging communications which it “carried or maintained,”

10

if “received by means of electronic transmission . . . solely for the purpose of providing storage or

11

computer processing services . . . .” 18 U.S.C. § 2702(a)(2) (emphasis added). The

12

communications here were transmitted to, and carried by, LinkedIn for the purpose of providing

13
14
15
16
17
18
19
20
21
22

or server on which the e-mail was received.” Also, reiterating the Ninth Circuit’s position that
“some storage is essential to communication via e-mail.”).
9

See, e.g., United States v. Councilman, 418 F.3d 67, 77-78, 79 (1st Cir. 2005) (finding, in context
of the Wiretap Act: “Congress sought to ensure that the messages and by-product files that are left
behind after transmission, as well as messages stored in a user’s mailbox, are protected from
unauthorized access. . . . [I]t appears that Congress had in mind these types of pre- and posttransmission ‘temporary, intermediate storage of a wire or electronic communication incidental to
the electronic transmission thereof,’ see 18 U.S.C. § 2510(17), when it established the definition of
‘electronic storage.’ Its aim was simply to protect such data.”) (citing, e.g., In re Pharmatrak, Inc.
Privacy Litig., 329 F.3d 9, 21 (1st Cir. 2003) (a rigid ‘storage-transit dichotomy ... may be less
than apt to address current problems.’”) (other citations omitted)).
10

Under Defendant’s reading, the only way that the SCA could ever apply would be if the service
provider divulged the communication by allowing an in-person view of its computer screen, or
perhaps by printing a hard copy of the communication.
11

23
24
25
26
27
28

LinkedIn operates as both an ECS and an RCS because it offers private messaging services, like
an ECS, as well as public posting abilities and biographical data storage, like an RCS. ¶¶ 42, 43.
See, e.g., Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 990 (C.D. Cal. 2010) (noting
that private mail and messaging falls with the scope of an ECS, and holding in the alternative that
social networking sites are also RCS providers, at least with regard to postings or information that
are accessible to a limited number of users, and stored by the social networking site, like videos,
wall postings, and comments.); Orin S. Kerr, A User’s Guide to the Stored Communications Act,
and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1215-16 n. 48 (Aug. 2004)
(“. . . the SCA allows both protected categories [RCS and ECS] to apply to the same provider . . . .
Focusing on the provider’s status in the abstract would create major gaps in the statute. . . .”).
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 12 -

1

computing services (i.e., to identify the user, and to display webpages to the user). Indeed,

2

Defendant’s prospectus acknowledges that, in addition to storing information, LinkedIn processes

3

information, stating, in part: “We process, store and use personal information and other data. . . .”

4

LinkedIn Corp., Prospectus (Form 424B4) (May 18, 2011), at 15 (emphasis added). Thus, while

5

these communications were stored, at least temporarily, Defendant also acted as an RCS and is

6

liable regardless of whether the information was stored.

7

D.

8

Defendant alternatively argues that “no communications content is at issue” because the

9

divulged information amounts to merely “non-content records.” Def. Br. at 11. The SCA’s far-

10

reaching definition of “contents,” however, includes “information concerning the substance,

11

purport, or meaning of that communication,” 18 U.S.C. § 2510(8), as distinguished from the mere

12

“existence of the communication or transactional records about it,”12 1986 U.S.C.C.A.N. 3555,

13

3567. “[T]he line between the two occasionally blurs.” Kerr, User’s Guide, supra, 72 Geo. Wash.

14

L. Rev. at 1228.13 It is not the communication’s type (e.g., data, signals, intelligence) that defines

15

whether it includes “contents,” but is instead the communication’s “functional role” that “explains

16

the different treatment that the two categories receive in the SCA.” Id.

LinkedIn Impermissibly Divulged “Contents”

17
18
19
20
21
22
23
24
25
26
27
28

12

In other words, the “information about the communication that the network uses to deliver and
process the content information.” Kerr, User’s Guide, supra, 72 Geo. Wash. L. Rev. at 1228.
13

Citing Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: The Big Brother That
Isn’t, 97 Nw. U. L. Rev. 607, 645-46 (2003) (“The conceptual difficulty is that the legal categories
of ‘contents’ and ‘addressing information’ . . . can be quite murky when considering human-tocomputer communications. . . . When an Internet user surfs the web, he sends commands to his
computer directing it to send commands to the host computer . . . . We can look at the user’s
command in two ways: either the command is the ‘content’ of the communication between the user
and his computer or it is merely ‘addressing information’ that the user entered into his computer to
tell the computer where it should go and what it should do. . . .” Here, the personal information
divulged by LinkedIn does not merely serve the purpose of “tell[ing] the computer where [the
communication] should go and what it should do,” but conveys “substance” and “meaning” to
advertisers regarding the user’s browsing patterns, interests, and identity).
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 13 -

1

1.

The User Identification Fits Squarely Within the Definition of Content

2

Here, LinkedIn improperly divulged Plaintiff’s User Identification to its third party

3

advertisers and advertising data aggregators. The very business goal of these companies (and

4

indeed, the purpose of the secret tracking devices and beacons that these third parties place on

5

users’ computers) is to create a profile of the type of person, so as to target advertising based on

6

demographic information. ¶¶ 9-13. The business is lucrative; these third parties pay LinkedIn for

7

the privilege of advertising on its site, and in turn, sell user information and demographic profiles.

8

Certainly, in the context of such profiling, the identity of the user and his/her demographic

9

information is the “substance, purport, or meaning” of the communication. While names are

10

frequently considered “non-content records,” the context of the communication dictates otherwise

11

here. The H.R. Report made clear:

12
13
14

Under [the definition of contents], a service provider is allowed to divulge
mailing lists that identify persons fitting broad demographic criteria. Unless
otherwise authorized, service providers may not divulge to third parties
information that profiles the activities of individual subscribers through the
divulgence of the contents of a communication.

15
16

H.R. Rep. No. 99-647, at 64 (emphasis added). Given the “functional role” of the

17

communication, the User Identification plainly qualifies as “contents.”

18
19

2.

Plaintiff’s Browsing History Is Also “Content” of a Communication

20

Contrary to Defendant’s statement that “plaintiff simply alleges that LinkedIn has disclosed

21

his ‘personal identity’ in the form of a User ID within a URL,” (Def. Br. at 12), the Complaint

22

alleges that LinkedIn also disclosed the most recent webpage that the user viewed. See ¶¶ 15, 16

23

(“LinkedIn . . . add[s] ‘social’ information such as the name of each user and the other LinkedIn

24

profiles they view and interact with,” “the ‘HTTP Referrer’ header [] tells the third party what

25

precise URL the user is looking at” and “allow[s] third parties to see . . . which other LinkedIn

26

profile pages each of those users is looking at and interacting with.”). Defendant does not—and

27

cannot—attempt to categorize Plaintiff’s browsing history as “record” information that can

28

permissibly be disclosed. When the Ninth Circuit allowed the disclosure of record information in
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 14 -

1

United States v. Forrester, 512 F.3d 500 (9th Cir. 2008), it reasoned, in part, that the information

2

did not disclose “the contents of [] messages or [] the particular pages on the websites the person

3

viewed.” (emphasis added). Here, LinkedIn divulged such content.

4

3.

Records Cannot Be Disclosed When Accompanied by Content

5

Even if the User Identification was interpreted as a “record,” Defendant was still prohibited

6

from disclosing that record in connection with a substantive communication. The SCA allows a

7

provider to “divulge a record . . . (not including the contents of communications. . .).” 18 U.S.C.

8

§ 2702(a)(3) (emphasis added). This plain language prohibits disclosing those records “including,”

9

i.e., together with, contents. See, e.g., United States v. Davis, Crim. No. 10-339, 2011 WL

10

2036463, at *4 (D. Or. May 24, 2011) (“Basic subscriber data which identifies a call’s origination,

11

destination, duration, and time of call enjoy no privacy protection because the data is incidental to

12

the [communication], and contains no content information.”) (citing United States v. Reed, 575

13

F.3d 900, 914–16 (9th Cir. 2009)) (emphasis added). Defendant concedes that the records

14

exception applies to “information that only reveals that a communication occurred (and between

15

or among whom), without revealing what was said or communicated.” Def. Br. at 12 (emphasis

16

added). Here, however, LinkedIn disclosed records, not in an isolated context such as a mailing list

17

“fitting broad demographic criteria,” but in connection with a communication, “divulg[ing] to third

18

parties information that profiles the activities of individual subscribers. . . .” See H.R. Rep. No. 99-

19

647, at 64.

20

Defendant’s cited authority on this issue is unavailing. In Forrester, 512 F.3d at 510 (Def.

21

Br. at 12), the Court found that there was no Fourth Amendment expectation of privacy for IP

22

addresses or email addresses because users “should know that this information is provided to and

23

used by Internet service providers for the specific purpose of directing the routing of information. .

24

. . [They] are voluntarily turned over in order to direct the third party’s servers.” (emphasis

25

added). Here, however, Plaintiff never voluntarily turned over information; he merely clicked on a

26

LinkedIn webpage. While Plaintiff may have expected that his IP address would be used in

27

connection with that page visit, no reasonable person would have expected that his User

28
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 15 -

1

Identification or browsing history would also be transmitted, nor was such information required for

2

LinkedIn to direct the communication.14

3

The Ninth Circuit compared “records” to the address on physical mail, stating: “At best, the

4

[third party] may make educated guesses about what was said in the messages or viewed on the

5

websites based on its knowledge of the e-mail to/from addresses and IP addresses—but this is no

6

different from speculation about the contents of a phone conversation on the basis of the identity of

7

the person or entity that was dialed.” Forrester, 512 F.3d at 510. LinkedIn takes this several steps

8

further, however: 1) Defendant sends the User Identification with an otherwise anonymous

9

communication (the click), eliminating the need for any “speculation” regarding the content of the

10

identified-person’s communications; 2) Defendant contemporaneously sends the user’s last-viewed

11

page along with its User Identification, plainly divulging additional, protected content; and

12

3) Defendant transmits this information to its paid advertisers, who employ beacons and secret

13

tracking devices to monitor browsing history.

14

Jessup-Morgan v. America Online, Inc., 20 F. Supp. 2d 1105 (E.D. Mich. 1998) (Def. Br.

15

at 12), is also inapplicable. That case involved a particularly egregious set of facts wherein a user

16

publicly, but anonymously, posted a malicious and defaming post while posing as (and providing

17

contact information for) another person. The court declined to hold the defendant liable for

18

revealing the identity of the user, in compliance with a subpoena. Id. at 1108.

19

The facts here are distinguishable from those in Jessup in a number of regards.15 First, there

20

is no public interest served by disclosing the identities of LinkedIn users, as there might have been

21

in disclosing the identity of a malicious, anonymous poster. Second, in Jessup, the third party (and

22

the public) already had possession of the contents of the communication, and sought only to place

23
24
25
26
27
28

14

Similarly, in Hill v. MCI WorldCom Communications, Inc., 120 F. Supp. 2d 1194 (S.D. Iowa
2000), the defendant divulged telephone transaction records (phone numbers and billing
information) which were neither content in that context nor divulged in connection with content.
Here, however, LinkedIn transmitted the User Identification with a communication (the click to
visit/interest in a webpage), and simultaneously included contents of an unrelated communication
(the last-viewed page).
15

Plaintiff also respectfully asserts that the non-controlling decision in Jessup was misplaced and
does not comport with the plain language of the statute.

Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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1

a name with an anonymous posting. Id. Here, by contrast, LinkedIn wrongfully divulged

2

information that Defendant has not disputed is “contents” (the last-viewed page), with the user’s

3

identifiable information. Third, and perhaps most alarmingly, the defendant in Jessup paired record

4

information with communications conveyed through the defendant’s communications service;

5

while here, LinkedIn paired the user’s identity with the user’s ongoing browsing history, i.e.,

6

communications between the user and various websites and companies, made without any

7

participation by, use of, or communications with LinkedIn.

8

E.

9

The Third Parties Were Not an “Addressee or Intended Recipient” of the
Divulged Information

10

Finally, Defendant asserts that its misconduct is “permissible under SCA because . . . any

11

disclosure was made to the ‘addressee or intended recipient’ of the communication.” Def. Br. at 13

12

(citing 18 U.S.C. § 2702(b)(1)). Defendant illogically concludes that the allegation that “LinkedIn

13

violated the SCA by transmitting plaintiff’s User ID to third parties” is an “admission [that] these

14

third parties are the ‘addressee or intended recipient’ of the purported communication.”16 Id.

15

Defendant’s reasoning is fundamentally flawed: LinkedIn may have intended to send the browsing

16

history and User Identification to a third party, but the Plaintiff did not. LinkedIn cannot

17

reasonably argue that the SCA permits a communications service provider to divulge users’

18

communications as long as it does so intentionally. Such misconduct is plainly prohibited. 18

19

U.S.C. § 2702.

20
21
22
23
24
25
26
27
28

16

In support of its argument, Defendant cites Facebook, 2011 WL 2039995 (a decision that
Defendant, earlier in its brief, contends is poorly reasoned, Def. Br. at n.3). In Facebook, plaintiffs
failed to articulate that the name, user ID, and browsing history of the person sending the message
were not a part of the “communication” that the user intended to send to the third party. See id. at
*6, 9, 10, 17 (Court granting plaintiffs “leave to amend to allege specific facts showing that the
information allegedly disclosed by Defendant was not part of a communication from Plaintiffs to
an addressee or intended recipient of that communication”). Here, Plaintiff alleges that the User
Identification and prior browsing history were impermissibly divulged, and there is no suggestion
that they were part of any intended communication from the user to the third parties.
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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1

F.

2

Defendant contends that “the User ID is assigned by and belongs to LinkedIn17 . . . and the

3

SCA does not limit LinkedIn’s access to its own systems.” Def. Br. at 10 (citing 18 U.S.C.

4

§ 2701(c)(1)). While the SCA exempts searches of stored data by ECSs—the Complaint alleges

5

that LinkedIn did far more: it divulged stored data to third parties. See, e.g., ¶¶ 15-19. Defendant’s

6

cited authority makes clear that the “service provider exception” is limited to access--not

7

disclosure--of information in the service provider’s possession.18 E.g., Crowley, 166 F. Supp. 2d at

8

1272 (allowing “access to [service provider’s] own systems, and declining to hold service provider

9

liable for SCA violation because it was neither an ECS nor RCS covered by the Act) (emphasis

10

added); Fraser v. Nationwide Mut. Ins. Co., 352 F.3d 107 (3d Cir. 2003) (allowing an insurance

11

company to search emails on its own server); see also, 18 U.S.C. § 2702(a)(2).

12

Defendant’s Misconduct is not Excused by the Service Provider Exception

LinkedIn violated the SCA by divulging Plaintiff’s communications, is not covered by

13

any exceptions to the SCA, and its motion to dismiss must be denied.

14

V.

15

LINKEDIN VIOLATED CALIFORNIA CONSUMER PROTECTION LAWS
A.

16

Plaintiff Has Adequately Pleaded Lost Money or Property for the Purpose of
the UCL and FAL

17

Plaintiff already has demonstrated that he suffered an injury-in-fact for the purposes of

18

the Article III standing requirement. Supra, sec. I. Defendant’s arguments notwithstanding (Def.

19

Br. at 14), Plaintiff also has adequately pleaded injury in the form of the loss of money or

20

property, the value of which is determinable by reference to prices set in an active market for

21

personal profiles.

22
23
17

24
25
26
27
28

The representation that the User Identification is “assigned by and belongs to LinkedIn”
trivializes the importance of the personal, private information that the user has entrusted to
LinkedIn, and with which LinkedIn has tied to that User Identification. Revealing the User
Identification carries with it a tremendous amount of information, especially in light of LinkedIn’s
transmission of the last-viewed page, and its use of advertisements that utilize secret tracking
devices on its website.
18

Moreover, the “service provider exception” applies only to ECSs, 18 U.S.C. § 2702(c)(1). As
discussed above, LinkedIn also functioned as an RCS.
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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1

“Data is currency,” according to then-FTC Commissioner Pamela Jones Harbour. FTC

2

Roundtable Series I on Exploring Privacy (Matter No. P095416), Dec. 7, 2009, at 2. In Property,

3

Privacy, and Personal Data, Berkeley School of Law Professor Paul M. Schwartz wrote:

4

Personal information is an important currency in the new millennium. The
monetary value of personal data is large and still growing, and corporate America
is moving quickly to profit from this trend. Companies view this information as a
corporate asset and have invested heavily in software that facilitates the collection
of consumer information.

5
6
7

117 Harv. L. Rev. 2055, 2056-57 (May 2004).
8
9

Active markets define values for a wide range of personal information. For example, full

10

social networking credentials can be worth between $1 and $35. Thorsten Holz, et al., Learning

11

More About the Underground Economy: A Case Study of Keyloggers and Dropzones, University

12

of Mannheim, Laboratory for Dependable Systems (2008) (“[E]ach credential is a marketable good

13

that can be sold in dedicated forums.”).

14

“Personal information is now a valuable commodity, with readily available market prices.”

15

Luiz Salazar, Privacy And Bankruptcy Law, Part I: Technology Explosion Creates Personal

16

Privacy Tension, Am. Bankr. Inst. J. (Nov. 2006), at 18; see also John T. Soma, et al., Corporate

17

Privacy Trend: The “Value” of Personally Identifiable Information (“PII”) Equals the “Value” of

18

Financial Assets, 15 Rich. J.L. & Tech. 11, at *1, 14 (2009), available at http://law.richmond.edu/

19

jolt/v15i4/article11.pdf (“PII, which companies obtain at little cost, has quantifiable value that is

20

rapidly reaching a level comparable to the value of traditional financial assets . . . . Individual data

21

points have concrete value, which can be traded on what is becoming a burgeoning market for

22

PII.”); Richard S. Murphy, Property Rights in Personal Information: An Economic Defense of

23

Privacy, 84 Geo. L.J. 2381, 2402 (July 1996) (“[P]articularized information is a commodity that

24

can be sold in a well developed market. . . . Therefore, the typical transaction between a merchant

25

or seller and a consumer increasingly can be characterized as an exchange of goods or services for

26

money and information.”).

27

Accordingly, in Doe 1 v. AOL LLC, 719 F. Supp. 2d 1102, 1113-14 (N.D. Cal. 2010), the

28

Court denied a motion for summary judgment on the pleadings with respect to CLRA and UCL
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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1

claims for the disclosure of users’ personal information. The court found that the plaintiffs

2

suffered injury resulting from AOL’s disclosure of confidential member information. Id. at 1111.

3

B.

4

Contrary to Defendant’s contention, (Def. Br. at 16) Plaintiff adequately pleaded

5

reliance to his detriment by alleging that “[h]ad Plaintiff known that Defendants would share his

6

personally identifiable information with third parties, he would not have purchased or used [ ]

7

Defendants’ services…” ¶ 64. This establishes that Plaintiff relied upon, and believed, that

8

Defendant would not share his personally identifiable information for the purposes of the UCL

9

and CLRA claims. Shin v. BMW of N. Am., No. 09-0398, 2009 U.S. Dist. LEXIS 67994, at *7

10

(C.D. Cal. July 16, 2009) (“For purposes of pleading a fraudulent omissions claim under the

11

UCL and CLRA, a plaintiff satisfies the "as a result of" requirement by pleading that he would

12

have behaved differently if he had been aware of the information and the undisclosed

13

information would have been important to reasonable consumers”).

Plaintiff Alleged Reliance for the purpose of UCL and CLRA

14

C.

15

Defendant’s argument notwithstanding (Def. Br. at 17), Plaintiff adequately alleged the

16

underlying unlawful, fraudulent, or unfair conduct required by the statute through violations of

17

the SCA, California Civil Code Section 1750, and the California Constitution.

Plaintiff Properly Alleged UCL Unlawful, Fraudulent, or Unfair Conduct

18

1.

Plaintiff Properly Pleaded UCL Unlawful Conduct

19

As shown above, Defendant violated the SCA and California Constitution. Accordingly,

20

the “unlawful” prong is met. Quintero Family Trust v. OneWest Bank, F.S.B., No. 09-1561, 2010

21

WL 392312, at *12 (S.D. Cal. Jan. 27, 2010) (“An act is 'unlawful' under section 17200 if it

22

violates an underlying state or federal statute or common law”).

23

2.

Plaintiff Properly Pleaded UCL Fraudulent Conduct

24

Plaintiff properly alleged fraudulent behavior as it is defined by the UCL. Under the

25

“fraudulent” prong it is only necessary to show that “members of the public are likely to be

26

deceived.” Sanchez v. Bear Stearns Residential Mortg. Corp., No. 09-2056, 2010 WL 1911154, at

27

*7 (S.D. Cal. May 11, 2010). The California Supreme Court noted that “the ‘fraud’ contemplated

28

by section 17200 … bears little resemblance to common law fraud or deception … [and] can be
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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1

shown even if no one was actually deceived, relied upon the fraudulent practice, or sustained any

2

damage.” S. Bay Chevrolet v. Gen. Motors Acceptance Corp., 72 Cal. App. 4th 861, 888 (1999)

3

(internal quotations and citations omitted). Because this is not an action under common law fraud,

4

Plaintiff’s claims do not sound in fraud and are not required to be pled with the specificity required

5

under Rule 9(b). Plaintiff is only required to show that members of the public are likely to be

6

deceived.19

7

Plaintiff properly pleaded fraudulent conduct by alleging that members of the public were

8

likely to be deceived by Defendant’s practices, including publication of its privacy policy, which

9

Defendant violated. ¶¶ 25, 29. Furthermore, Plaintiff also alleges that even if Defendant’s privacy

10

policy accurately described the disclosure of its users private information (which it did not), such a

11

privacy policy is ineffective in providing consumers with useful and accurate information about

12

how personal information will be collected and used. Instead, consumers are likely to believe,

13

when seeing that a Website has a privacy policy, that the information collected is not shared with

14

third parties. Plaintiff thus properly alleged that members of the public are likely to be deceived by

15

Defendant’s privacy policy with respect to private, personal information.

16

3.

Plaintiff Properly Pleaded UCL Unfair Conduct

17

There are three tests that a court may apply to a consumer action relating to the “unfair”

18

prong of the UCL. See Drum v. San Fernando Valley Bar Ass’n, 182 Cal. App. 4th 247, 256-57

19

(2010). The first test requires: (a) substantial consumer injury; (b) that the injury is not outweighed

20

by countervailing benefits to consumers; and (c) that the injury is one that consumers could not

21

reasonably have avoided. Id.; see Camacho v. Auto. Club of S. Cal., 142 Cal. App. 4th 1394, 1403

22

(2006). The second test requires that the unfair conduct be “tethered to specific constitutional,

23
24
25
26
27
28

19

Even if the Court were to apply the standards of Rule 9(b) to the Complaint, Plaintiff has
pleaded the allegations with sufficient particularity to put the Defendant on notice of their claims.
“Averments of fraud must be accompanied by ‘the who, what, when, where, and how’ of the
misconduct charged.” Vess v. Ciba-Geigy Corp. U.S.A., 317 F.3d 1097, 1106 (9th Cir. 2003)
(citation omitted). Plaintiff has clearly met this standard, including the when (March 24, 2011); the
what (providing Plaintiff’s personal information to third parties); the who (Quantcast and
Scorecard Research); the where (Plaintiff’s computer located at his home in San Francisco); and
the how (including the User Identification in a HTTP Referrer header).
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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1

statutory, or regulatory provisions,” and the third test asks whether the conduct was “immoral,

2

unethical, oppressive, unscrupulous or substantially injurious to consumers,” weighing the utility

3

of the defendant’s conduct against the harm to the victim. Drum, 182 Cal. App. 4th at 256-57.

4

Contrary to Defendant’s assertion, Plaintiff has alleged facts that satisfy any one of these tests that

5

the Court may apply.

6

Plaintiff has satisfied the first test; Plaintiff sustained a substantial consumer injury, there

7

was no countervailing benefit to consumers at all, and Plaintiff could not have avoided the injury.

8

Indeed, California places a strong emphasis on the right to privacy at issue here. California Const.

9

Article 1 Section 1. Courts have repeatedly recognized that invasion of privacy constitutes injury,

10

and is actionable under the law. See, e.g., Forsher v. Bugliosi, 26 Cal. 3d 792 (1980). Defendant

11

caused this injury when it gave Plaintiff’s personally identifiable information to third parties, and

12

there was no countervailing benefit to consumers. Plaintiff could not have avoided the injury

13

because Defendant acted contrary to the position taken in its privacy policy, and there was no other

14

way for Plaintiff to learn of Defendant’s practices.

15

The second test is satisfied because Plaintiff alleged unfair conduct that is specifically

16

tethered to a constitutional provision as well as multiple statutory provisions. Finally, Plaintiff

17

pleaded facts sufficient to satisfy the third test, alleging the unscrupulous behavior of Defendant in

18

acting contrary to its privacy policy, with no corresponding utility for the consumer and serious

19

harm based on the violation of privacy. ¶¶ 11, 13-19, 24-33.

20

D.

Plaintiff is a Consumer Who Purchased a Service From LinkedIn

21

1.

Plaintiff is a “Consumer” under the CLRA

22

A violation of the CLRA may only be alleged by a “[c]onsumer,” defined in the statute as

23

an “individual who seeks or acquires, by purchase or lease, any goods or services for personal,

24

family, or household purposes.” Cal. Civ. Code § 1761(d). The statute does not require that the

25

consumer actually purchased, leased, or otherwise paid for the good or service. Cal. Civ. Code

26

1770(a) (“The following unfair methods of competition and unfair or deceptive acts or practices

27

undertaken by any person in a transaction intended to result or which results in the sale or lease of

28

goods or services to any consumer are unlawful”) (emphasis added).
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 22 -

1

Here, Plaintiff is a “consumer” because he exchanged valuable consideration, in the form

2

of personal information, for Defendant’s service. Moreover, Defendant offered its service to

3

Plaintiff, and other consumers, for a price of $24.95 per month. ¶ 3. Accordingly, the conduct at

4

issue falls within the definition of the CLRA.

5

2.

LinkedIn is a “Service” under the CLRA

6

The CLRA defines “[s]ervice” as “work, labor, and services for other than a commercial

7

or business use, including services furnished in connection with the sale or repair of goods.” Cal.

8

Civ. Code 1761(b). Defendant provides a service under this definition, allowing access to a social

9

network of professionals to users of the website in exchange for personal information, revenue

10

from data aggregators, as well as selling premium services. Indeed, LinkedIn acknowledges that it

11

provides a “service” in its own User Agreement, stating, in part: “For as long as LinkedIn

12

continues to offer the Services, LinkedIn shall provide and seek to update, improve and expand the

13

Services.” User Agreement, LINKEDIN, http://www.linkedin.com/static?key=user_agreement (last

14

visited Aug. 1, 2011). These services are not provided for commercial or business use, but for

15

personal use by consumers looking to connect with other professionals and develop their

16

professional career.

17

Furthermore, the cases that Defendant relies on to argue that LinkedIn is not a service are

18

inapplicable. Def. Br. at 19. Unlike Ferrington v. McAfee, Inc., No. 10-1455, 2010 WL 3910169

19

(N.D. Cal. Oct. 5, 2010), the instant case does not involve software. Fairbanks v. Superior Court,

20

46 Cal. 4th 56, 61 (Oct. 5, 2009), involved an insurance policy and the court held that the

21

obligation to pay money under such a policy is neither work nor labor, factors not at issue in this

22

case. Id. Berry v. American Express Publishing, Inc., 147 Cal. App. 4th 224, 227 (2007), held that

23

credit card transactions were not covered by the CLRA, primarily because of the legislative history

24

of the CLRA, where the drafters considered adding the term “credit” into the definitions but

25

ultimately rejected it. Id. at 230-32. This reasoning has no application here.

26

Moreover, Defendant’s contention that LinkedIn is not a “service” under the CLRA is

27

inconsistent with the CLRA’s purpose. The CLRA is to be “liberally construed and applied to

28

promote its underlying purposes, which are to protect consumers against unfair and deceptive
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 23 -

1

business practices and to provide efficient and economical procedures to secure such protection.”

2

Cal. Civ. Code §1760 (West 2009). With the development of personal information as a form of

3

currency on the Internet for data aggregators and advertisers, as well as the rise of social

4

networking Websites like the Defendant’s, it is important to protect consumers from unfair and

5

deceptive business practices in these new areas, and the CLRA was designed to do just that.

6

E.

7

Plaintiff alleged facts that show appreciable and actual damage as a result of the breach

8

Plaintiff Alleged Breach of Contract Damages

of contract. See supra, sec. V.A.

9

F.

LinkedIn Converted Plaintiff’s Property

10

Defendant tries to avoid liability by arguing that the personal browsing history and other

11

personally identifiable information of the Plaintiff is not an intangible interest that is merged

12

with or reflected in something tangible and that it cannot be exclusively possessed. Def. Br. at

13

23-24. Defendant’s argument is in error.

14

Plaintiff had a precisely defined, legally protected privacy interest. “In order to determine

15

whether an intangible property right existed … (1) there must be an interest capable of precise

16

definition; (2) it must be capable of exclusive possession or control; and (3) the putative owner

17

must have established a legitimate claim to exclusivity.” Ali v. Fasteners for Retail, Inc., 544 F.

18

Supp. 2d 1064, 1072 (E.D. Cal. 2008). A legally recognized informational privacy interest is one

19

which protects the dissemination or misuse of confidential information. Hill, 865 P.2d at 642. A

20

LinkedIn member, like the Plaintiff, has an informational privacy interest in preventing third

21

parties from collecting and disseminating private browser histories and other personally

22

identifiable information. The privacy amendment to the California Constitution was enacted to

23

guard against exactly such an intrusion. Id. This privacy interest is exclusively controlled by the

24

person whose private, sensitive information is at issue.20

25

20

26
27
28

Defendant notes that Boon Rawd Trading International Co. v. Paleewong Trading Co., 688 F.
Supp. 2d 940, 954 (N.D. Cal. 2010), puts forth the proposition that an intangible interest can be
the subject of a conversion claim only where that interest is merged with, or reflected in,
something tangible. Def. Br. at 23-24. However, that Court notes that “to the extent ‘California
retains some vestigial merger requirement, it is clearly minimal, and at most requires only some
connection to a document or tangible object.’” Boon, 688 F. Supp. 2d at 954 (quoting Kremen v.
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

- 24 -

1

CONCLUSION
For the reasons stated above, Defendant’s motion to dismiss must be denied.21

2
3

Dated August 1, 2011

Respectfully submitted,
/s/ Michael R. Reese
Michael R. Reese (State Bar No. 206773)
REESE RICHMAN LLP
875 Avenue of the Americas, 18th Floor
New York, New York 10001
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

4
5
6
7
8

Sanford P. Dumain
Peter E. Seidman (admitted pro hac vice)
Charles Slidders
Melissa Ryan Clark
MILBERG LLP
One Pennsylvania Plaza, 49th Floor
New York, New York 10119-0165
Telephone:
[phone]
Facsimile:
[phone]
Email: [e-mail]

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Cohen, 337 F.3d 1024, 1033 (9th Cir. 2003)). It further notes that there is a clear trend that
intangible property can be a subject of conversion. Id. Defendant’s reliance on this case is thus
misplaced.
21

If the court grants any part of Defendant’s motion to dismiss, Plaintiff respectfully request
leave to amend under Federal Rule of Civil Procedure 15.
Plaintiff’s Opposition to Defendant’s Motion to Dismiss the Complaint
Case No. 11-cv-01468 LHK

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