Walker v. Facebook
Filing
1
CLASS ACTION COMPLAINT against Facebook, Inc. and Does 1 through 10, filed by Jeanne M. Walker. (Attachments: # 1 Civil Cover Sheet) (NOB) Modified on 10/21/2011 to add Doe defendants. (KCJ).
Elizabeth Thomas
Elizabeth Cunningham Thomas, PLLC
P.O. Box 8946
Missoula, MT 59807
(406) 728-5936 – Phone
(406)728-2828 – Facsimile
elizthomas@bresnan.net
Attorney for Plaintiff
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
Jeanne M. Walker
Individually and on Behalf of
All
Others Similarly Situated,
Plaintiff,
Case No:
v.
FACEBOOK, INC
[Serve at:
1601 S. California Ave.
Palo Alto, CA 94304],
DOES 1 THROUGH 10,
CLASS ACTION COMPLAINT
JURY TRIAL DEMANDED
Defendants.
Plaintiff, JEANNE M. WALKER, on behalf of herself and all others
similarly situated, alleges and avers as follows:
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INTRODUCTION
1.
This class action arises out of improper and unlawful actions by the
Defendants who participated in a scheme to intercept, endeavor to
intercept, or procure the Plaintiff and the Class members‟ personal
information as prohibited by law.
2.
Plaintiff and the Class members are individuals who subscribe to the
online social media site Facebook.
3.
Facebook maintains personal information pertaining to each
individual as well as monitors the individual online habits of its users
keeping track of websites they visit.
4.
Upon obtaining personal information and/or wire or electronic
communications of the Plaintiff, Facebook conspired to use said
information for target marketing which pertained to the Plaintiff and
the individual Class members, over the Internet.
5.
Such conduct was committed in violation of Title III of the Omnibus
Crime Control and Safe Streets Act of 1968 as amended by the
Electronic Communication Privacy Act of 1986, 18 U.S.C. § 2511, et
seq. (the “Wiretap Act”).
PARTIES
Plaintiff
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6.
Plaintiff, Jeanne M. Walker, is an individual resident of Yellowstone
County, which is in this district. Upon information and belief,
Defendants intercepted, collected and stored personal information
from Plaintiff, Jeanne M. Walker.
Defendant
7.
Defendant is a company organized and existing under the laws of
Delaware with is principal place of business at 1601 S. California
Ave. Palo Alto, California. 94304. Upon information and belief,
Facebook, Inc. owns and/or operates websites including
www.facebook.com, which offer online social interaction and picture
storage. Facebook does not appear to be registered with the Montana
Secretary of State to do business in Montana but continues to do
business in Montana.
8.
Defendants Doe 1 through 10 are the remaining directors, employees,
agents, or contractors of Facebook that are yet to be named and whose
identity will become known through discovery and/or by requests
made by Plaintiff or the members of the Plaintiff class, after which
such remaining defendants will be added as individual defendants.
JURISDICTION AND VENUE
9.
This Court has jurisdiction over this action and all the defendants
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pursuant to 28 U.S.C. § 1331 in that this action arises under statutes of
the United States, specifically violations of the “Wiretap Act”.
10.
Additionally, this Court has personal jurisdiction over Defendant
Facebook, Inc. pursuant to Rule 4(B)(1)(b) of the Montana Rules of
Civil Procedure, since Facebook, Inc. transacted business and made
contracts in Montana directly through the website
www.facebook.com, violated the law within the state of Montana, and
otherwise has sufficient minimum contacts with the state of Montana
as more particularly described below.
11.
Defendant Facebook, Inc. has sufficient minimum contacts such that
the maintenance of this suit does not offend traditional notions of fair
play and substantial justice. Facebook has voluntarily submitted itself
to the jurisdiction of this Court and jurisdiction is proper because,
among other things:
a.
Facebook, Inc. directly and purposefully obtained,
misappropriated and used personal information and/or
information relating to wire or electronic communications of
individuals living in Montana, including the Plaintiff and the
individual Class members;
b.
Facebook, Inc. committed tortuous acts within this state by
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misappropriating personal information and/or wire or electronic
communications of citizens of Montana and otherwise violating
the Wiretap Act and 42 U.S.C. § 1983;
c.
Plaintiff‟s and the Class members‟ causes of action directly
arise from Facebook‟s commission of tortious and unlawful
acts in Montana;
d.
Plaintiff‟s and the Class members‟ causes of action directly
arise from Facebook‟s transaction of business in Montana;
e.
Facebook, Inc. should reasonably anticipate being haled into
court in Montana to answer for its unlawful acts. Montana has
a strong interest in providing a forum for its residents aggrieved
by violations of the law.
12.
Venue is proper in this District pursuant to 28 U.S.C. § 1391(c)
because a substantial amount of the acts and omissions giving rise to
this cause of action occurred in the District of Montana.
GENERAL ALLEGATIONS
13.
Defendant Facebook, Inc. operates a website, www.facebook.com,
which is primarily a social networking site.
14.
In conducting its business, Facebook, Inc. aggregates data on
individual members of the public and uses that information in
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furtherance of marketing and advertising.
15.
Facebook tracks, collects and stores wire or electronic
communications of its users, including but not limited to their Internet
browsing history.
16.
Leading up to September 23, 2011, Facebook tracked, collected and
stored its users‟ wire or electronic communications, including but not
limited to portions of their Internet browsing history even when the
users were not logged-in to Facebook.
17.
Plaintiff did not give consent or otherwise authorize Facebook to
intercept, track, collect and store her wire or electronic
communications, including but not limited to her Internet browsing
history when not logged-in to Facebook.
18.
The electronic information procured by Facebook, Inc. while Plaintiff
was not logged-in to Facebook contained personal information and/or
wire or electronic communications of the Plaintiff.
19.
At all times material, Defendant knew, or reasonably should have
known, that their actions violated clearly established statutory rights
of the Plaintiff and the Class members.
CLASS ACTION ALLEGATIONS
20.
This action is properly brought as a plaintiff class action pursuant to
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Fed. R. Civ. P. 23(b)(3). Plaintiff brings this action on her own behalf
and all others similarly situated, as representative of the following
class and subclass:
All individuals in the United States who subscribe to
Facebook and whose electronic internet information was
intercepted by Facebook when the individuals were not
logged-in to Facebook.
Excluded from the Class are (1) any individual defendant who opts
out of the class; (2) any member of the immediate family of any
individual defendant; and/or (3) any member of the undersigned
attorney‟s immediate families.
21.
The particular members of the Class are capable of being described
without difficult managerial or administrative problems. The
members of the Class are readily identifiable from the information and
records in the possession or control of the defendants.
22.
The Class members are so numerous that individual joinder of all
members is impractical. This allegation is based upon information
and belief that Defendant intercepted the personal information of
millions of Facebook users of which there are more than 150 million
in the United States.
23.
There are questions of law and fact common to the Class, which
questions predominate over any questions affecting only individual
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members of the Class, and, in fact, the wrongs suffered and remedies
sought by Plaintiff and the other members of the Class are premised
upon an unlawful scheme participated in by all defendants. The
principal common issues include, but are certainly not limited to the
following:
a.
The nature and extent of the Defendant‟s participation in
intercepting the and/or wire or electronic communications of
class members;
b.
Whether or not the interception of wire or electronic
communications was intentional;
c.
Whether or not Defendant should be enjoined from intercepting
any wire or electronic communications without the consent of
its users;
d.
Whether the actions taken by Defendant in intercepting the wire
or electronic communications of class members violate the
Wiretap Act;
e.
The nature and extent to which the wire or electronic
communications of Class members was unlawfully intercepted,
tracked, stored or used;
f.
The nature and extent of the Class members actual damages;
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g.
The nature and extent of all statutory penalties or damages for
which the Defendant are liable to the Class members; and
h.
24.
Whether punitive damages are appropriate.
Plaintiff‟s claims are typical of those of the Class and are based on the
same legal and factual theories.
25.
Plaintiff will fairly and adequately represent and protect the interests
of the Class. She has suffered injury in her own capacity from the
practices complained of and is ready, willing and able to serve as class
representative. Moreover, Plaintiff‟s counsel firm is experienced in
handling class actions and actions involving unlawful commercial
practices. Neither Plaintiff nor her counsel has any interest that might
cause them not to vigorously pursue this action.
26.
Certification of a plaintiff class under Fed. R. Civ. P. 23(b)(3) is
appropriate in that Plaintiff and the Class members seek monetary
damages, common questions predominate over any individual
questions, and a plaintiff class action is superior for the fair and
efficient adjudication of this controversy. A plaintiff class action will
cause an orderly and expeditious administration of the Class
members‟ claims and economies of time, effort and expense will be
fostered and uniformity of decisions will be ensured. Moreover, the
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individual class members are unlikely to be aware of their rights and
not in a position (either through experience or financially) to
commence individual litigation against the likes of the defendants.
27.
Alternatively, certification of a plaintiff class under Fed. R. Civ. P.
23(b)(1) is appropriate in that inconsistent or varying adjudications
with respect to individual members of the Class would establish
incompatible standards of conduct for the defendants or adjudications
with respect to individual members of the Class as a practical matter
would be dispositive of the interests of the other members not parties
to the adjudications or would substantially impair or impede their
ability to protect their interests.
COUNT I
(Violation of the Wiretap Act)
28.
Plaintiff incorporates all preceding paragraphs as though fully set
forth herein.
29.
As described herein, Facebook, Inc. intentionally intercepted and
collected wire or electronic communications from its users.
30.
At times, Facebook, Inc. intercepted and collected information from
its users without their consent while the users were not logged-in to
Facebook.
31.
The transmission of data between Plaintiff‟s computer and the Internet
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constitute “electronic communication” within the meaning of 18
U.S.C. § 2510(12).
32.
Facebook‟s data collection practices as described herein constitute
“interceptions” within the meaning of § 2510(4).
33.
As a direct and proximate result of such unlawful conduct, Defendant
violated 18 U.S.C. § 2511 in that the Defendants:
a.
Intentionally intercepted, endeavored to intercept, or procured
another person to intercept wire and/or electronic
communications of the Plaintiff;
b.
Upon belief predicated upon further discovery, intentionally
disclosed or endeavored to disclose to another person the
contents of Plaintiff‟s wire or electronic communications,
knowing or having reason to know that the information was
obtained through the interception of wire or electronic
communications in violation of 18 U.S.C. §2511(1)(a).
c.
Upon belief predicated upon further discovery, intentionally
used or endeavored to use the contents of Plaintiff‟s wire or
electronic communications, knowing or having reason to know
that the information through the interception of wire or
electronic communications in violation of 18 U.S.C.
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§2511(1)(a).
34.
Facebook Inc.‟s actions described in ¶33 occurred without the consent
of Plaintiff and violated Facebook Inc‟s own Privacy Policy per the
following promises it made to users:
a. “We receive data whenever you visit a....website that uses
Facebook Platform or visit a site with a Facebook feature....This
may include the date and time you visit the site; the web address,
or URL, you're on; technical information about the IP address,
browser and the operating system you use; and, if you are logged
in to Facebook, your User ID.” Facebook Data Use Policy,
available at http://www.facebook.com/full_data_use_policy
as of October 19, 2011 and last updated September 23, 2011.
b. “Does Facebook use cookies if I don't have an account or have
logged out of my account? When you log out of Facebook, we
remove the cookies that identify your particular account, but we
do use other cookies primarily to help keep you and others on
Facebook safe and secure. For example, we use cookies to identify
and disable the accounts of spammers and phishers, to prevent
people who are underage from signing up with a false birth date,
to help you recover your account if you lose access to it or it‟s
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compromised, to power our opt-in security features like Login
Notifications and Login Approvals, and to help identify public
computers so that we can discourage people from using “Keep me
logged in.” We may also use anonymized or aggregate
information to improve our products. We also use cookies if you
don‟t have a Facebook account, but have visited facebook.com.
Again, these cookies help us protect Facebook and the people who
use it from malicious activity. For example, they help us detect
and prevent denial-of-service attacks and the mass creation of fake
accounts. We do not use these cookies to create a profile of your
browsing behavior on third-party sites. Facebook Frequently
Asked Questions, available at permalink:
https://www.facebook.com/help/?faq=239530772765713#DoesFacebook-use-cookies-if-I-don't-have-an-account-or-have-loggedout-of-my-account? on October 19, 2011.
c. “What information does Facebook receive when I visit a site with
the Like button or another social plugin? If you‟re logged out or
don‟t have a Facebook account and visit a website with the Like
button or another social plugin, your browser sends us a more
limited set of information. For example, because you‟re not
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logged in to Facebook, we don‟t receive your user ID.” Facebook
Frequently Asked Questions, available at permalink:
https://www.facebook.com/help/?faq=293506123997323#Whatinformation-does-Facebook-receive-when-I-visit-a-site-with-theLike-button-or-another-social-plugin? on October 19, 2011.
35.
Facebook Inc.‟s actions described in ¶33 occurred without the consent
of Facebook-affiliated websites, including, for example, the websites
for the New York Times and Washington Post newspapers, in that.
a.
The interception and collection of information described in this
paragraph caused the New York Times to violate its own
Privacy Policy for its websites, including www.nytimes.com,
which informs readers:
i.
“If you have registered online for one of our sites, The
New York Times will not sell, rent, swap or authorize
any third party to use your e-mail address without your
permission. This also applies to any information that
personally identifies you, except as noted immediately
below;” and
ii.
“NYTimes.com will not share personal information about
you as an individual to third parties without your
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consent.”
b.
The interception and collection of information described in this
paragraph caused the Washington Post to violate its own
Privacy Policy for its websites, including
www.washingtonpost.com, which informs readers:
Do other companies or people have access to personally
identifiable information I provide to
washingtonpost.com?
When you are on an area of washingtonpost.com and are
asked for personally identifiable information, you are
providing that information to The Washington Post
Company, its divisions or affiliates, or vendors providing
contractual services for washingtonpost.com (such as
hosting vendors and list managers). If personally
identifiable information is being provided to and/or
maintained by any company other than these, our policy
is that we will not transfer that personally identifiable
information unless notice is given prior to transfer. If you
do not want your information to be shared, you can
choose not to allow the transfer by not using that
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particular service or by expressing this preference, if
requested.
36.
Regardless of the consent alleged by Facebook, Inc. from Plaintiff or
the Facebook-affiliated websites, such consent was not valid because
Facebook Inc.‟s actions described herein were for the purpose of
committing tortuous acts in violation of the laws of the United States
or of any State. In taking its actions, Facebook, Inc. committed the
following tortuous acts alleged in this petition:
a.
b.
Intrusion upon Plaintiff‟s seclusion;
c.
Trespass to personal property;
d.
37.
Unjust enrichment
Tortious interference with a business expectancy;
As a result of the above violations and pursuant to 18 U.S.C. § 2520,
Defendant is liable to Plaintiff and the Class in the sum of statutory
damages consisting of the greater of $100 for each day each of the
class members‟ data was wrongfully obtained or $10,000.00 per
violation; injunctive and declaratory relief; punitive damages in an
amount to be determined by a jury, but sufficient to prevent the same
or similar conduct by Facebook in the future, and a reasonable
attorney‟s fee and other litigation costs reasonable.
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COUNT II
(Unjust enrichment)
38.
Plaintiff incorporates all preceding paragraphs as though fully set
forth herein.
39.
Plaintiff conferred a benefit on Defendant without Plaintiff‟s consent,
namely access to her wire or electronic communications over the
Internet.
40.
Upon information and belief, Defendant realized such benefits
through either sales to third-parties or greater knowledge of its own
users‟ behavior without their consent.
41.
Acceptance and retention of such benefit without Plaintiff‟s consent is
unjust and inequitable.
COUNT III
(Intrusion upon seclusion)
42.
Plaintiff incorporates all preceding paragraphs as though fully set
forth herein.
43.
In intercepting Plaintiff‟s wire and electronic communications on the
Internet, Defendants intentionally intruded upon her solitude or
seclusion.
44.
Plaintiff did not consent to Defendant‟s intrusion.
45.
Defendant‟s intentional intrusion on Plaintiff‟s solitude or seclusion
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without her consent would be highly offensive to a reasonable person.
COUNT V
(Trespass to Personal Property)
46.
Plaintiff incorporates all preceding paragraphs as though set forth
herein.
47.
Defendant, intentionally and without consent or other legal
justification, tracked Plaintiff‟s activity while the Plaintiff was
logged-off of the website Facebook.com, and, in the process,
connected Plaintiff‟s personally identifiable information to her
specific actions on the Internet.
48.
Defendant, intentionally and without consent or other legal
justification, placed cookies on Plaintiff‟s computers which tracked
her activity while logged-off of Facebook.
49.
Defendant‟s intentional and unjustified placing of a cookie designed
to track Plaintiff‟s Internet activities while logged-off of Facebook
and actual tracking of Plaintiff‟s activities interfered with Plaintiff‟s
use of the following personal property owned by the Plaintiff:
a.
Plaintiff‟s computer; and
b.
Plaintiff‟s personally identifiable information
COUNT V
(Tortious interference with a business relationship)
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50.
Plaintiff incorporates all preceding paragraphs as though set forth
herein.
51.
Plaintiff had a valid business relationship with Facebook-affiliated
websites such as newyorktimes.com and washingtonpost.com that the
affiliated websites would not share their personal identifiable
information with third-parties without their express consent.
a.
The Facebook-affiliate New York Times maintained a Privacy
Policy for its websites, including www.newyorktimes.com
during the period in which Defendant committed the acts
alleged herein which contained the following promises to
Plaintiff:
i.
“If you have registered online for one of our sites, The
New York Times will not sell, rent, swap or authorize
any third party to use your e-mail address without your
permission. This also applies to any information that
personally identifies you, except as noted immediately
below.”
ii.
“NYTimes.com will not share personal information about
you as an individual to third parties without your
consent.”
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b.
The Facebook-affiliate Washington Post maintained a Privacy
Policy for its websites, including www.washingtonpost.com
during the period in which Defendant committed the acts
alleged herein which contained the following promise to
Plaintiff:
Do other companies or people have access to personally
identifiable information I provide to
washingtonpost.com?
When you are on an area of washingtonpost.com and are
asked for personally identifiable information, you are
providing that information to The Washington Post
Company, its divisions or affiliates, or vendors providing
contractual services for washingtonpost.com (such as
hosting vendors and list managers). If personally
identifiable information is being provided to and/or
maintained by any company other than these, our policy
is that we will not transfer that personally identifiable
information unless notice is given prior to transfer. If you
do not want your information to be shared, you can
choose not to allow the transfer by not using that
particular service or by expressing this preference, if
requested. Additional information about personally
identifiable information follows.
52.
Defendant knew or should of known of the business relationship and
expectancy between the Plaintiff and Facebook-affiliated sites through
the affiliated-sites‟ publicly available Privacy Policies.
53.
Defendant intentionally caused breach of the business relationship and
expectancy between Plaintiff and Facebook-affiliated sites by placing
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„cookies‟ on Plaintiff‟s computer which would allow Facebook to
circumvent both its own and its affiliates‟ publicly-stated Privacy
Policies.
54.
Defendant‟s actions in interfering with the business relationships and
expectations between Plaintiff and Facebook-affiliated were not
justified.
55.
Plaintiff suffered damage as a result of the Defendant‟s conduct.
PRAYER FOR DAMAGES
WHEREFORE, Plaintiff, on behalf of herself and all members of the
Class respectfully prays for judgment against the defendants as follows:
a.
For an order certifying that this action may be maintained as a
class action under Fed. R. Civ. P. 23(b)(3) or, in the alternative,
Fed. R. Civ. P. 23(b)(1) and appointing Plaintiff and her
counsel, to represent the Class and directing that reasonable
notice of this action be given to all other members of the Class
as necessary and appropriate;
b.
For a declaration that the Defendants‟ actions violated the 18
U.S.C. 2511 et seq. ;
c.
For a declaration that the Defendants, through their actions and
misconduct as alleged above, have been unjustly enriched and
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an order that Defendants disgorge such unlawful gains and
proceeds;
d.
For a declaration that the Defendants, through their actions and
misconduct as alleged above, have committed trespass upon the
personal property of Plaintiff and an order assessing damages
against the Defendants for violations of Plaintiff‟s personal
property rights;
e.
For a declaration that the Defendants tortiously interfered with
a business expectancy of Plaintiff and Facebook-affiliated
websites and an order assessing damages against the
Defendants to compensate Plaintiff for harms caused by the
Defendants‟ actions;
f.
For all actual damages, statutory damages, penalties, and
remedies available for the defendants‟ violations of 18 U.S.C.
2511 et seq. ;
g.
That judgment be entered against Defendant for statutory
damages pursuant to 18 U.S.C. §2520(c)(2)(B);
h.
That judgment be entered against Defendant for statutory
damages pursuant to 18 U.S.C. §2520(b)(2);
i.
That Plaintiff and the Class recover pre-judgment and post-
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judgment interest as permitted by law;
j.
For an award to Plaintiff and the Class of their reasonable
attorneys fees and other litigation costs reasonably incurred
pursuant to 18 U.S.C. §2520(b)(3);
k.
That the court enter an order granting Plaintiff and the Class a
preliminary and permanent injunction restraining and enjoining
Defendant from any act to intercept electronic information from
its users when they are not logged in and from disclosing any of
the information already acquired on its servers;
l.
That the Court grant such other and further relief as may be just
and proper;
JURY DEMAND
Plaintiff demands that all issues so triable in this Complaint be tried to
a jury.
Dated this 20th day of October, 2011.
Respectfully submitted,
/s/ Elizabeth Thomas
Elizabeth Thomas
Montana State Bar #7172
elizthomas@bresnan.net
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DEFENDANT TO BE SERVED VIA CERTIFIED MAIL AS
FOLLOWS:
FACEBOOK, INC
1601 S. California Ave.
Palo Alto, CA 94304
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