E.K.D. et al v. Facebook, Inc.

Filing 60

AFFIDAVIT re 57 MOTION to Transfer Case (Declaration of Matthew D. Brown in Support of Motion to Transfer) by Facebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K)(Brown, Matthew)

EXHIBIT K

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ROBERT S. ARNS
(#65071, [e-mail])
JONATHAN B. DAVIS
(#191346, [e-mail])
STEVEN R. WEINMANN
(#190956, srw(arnslaw.com)
THE ARNS LAW FIRM
515 Folsom Street, 3rd Floor
San Francisco, CA 94105
Tel: [phone]
Fax: [phone]

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JONATHAN M. JAFFE
(# 267012, jmjJjaffe-1aw.com)
JONATHAN JAFFE LAW
3055 Hillegass Avenue
Berkeley, CA 94705
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs

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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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ANGEL FRALEY; PAUL WANG; SUSAN
MAINZER JAMES H. DUVAL, a minor,
by and through JAMES DUVAL, as
Guardian ad Litem; and WILLIAM TAIT, a
minor, by and through RUSSELL TAIT, as
Guardian ad Litem; mdividually and on
behalf of all others similarly situated,

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Plaintiffs,
v.

FACEBOOK, INC., a corporation; and
DOES 1-100,
Defendants.

Case No. CV 11-01726 LHK PSG
V

SECOND AMENDED CLASS
ACTION COMPLAINT FOR
DAMAGES
CLASS ACTION
DEMAND FOR JURY TRIAL
1.CAL. CIV. CODE 3344
2.UNFAIR COMPETITION
3.UNJUST ENRICHMENT
Courtroom: 4
Judge: Hon. Lucy H. Koh

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Trial Date: None Set

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1.

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DUVAL, a minor, by and through JAMES DUVAL as Guardian ad Litem, and WILLIAM

Plaintiffs ANGEL FRALEY, PAUL WANG and SUSAN MAINZER, JAMES H.

TAIT, a minor, by and through RUSSELL TAIT, as Guardian ad Litem (“Plaintiffs”) on
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behalf of themselves and all others similarly situated, make the following allegations on
information and belief, except as to allegations pertaining to Plaintiff individually, which are

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based on their respective personal knowledge:

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L INTRODUCTION

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2.

Plaintiffs bring this class action complaint against Facebook, Inc. (hereafter,

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“FACEBOOK”) for appropriating the names, photographs, likenesses and identities of

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Plaintiffs to advertise products, services or brands for a commercial purpose without

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Plaintiffs’ consent, or the consent of their parents or legal guardians when a minor was

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involved, for unfair and deceptive business practices, and in violation of FACEBOOK’s

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agreement with Plaintiffs, accepted industry standards, and state law.
3.

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The wrongful conduct by FACEBOOK that is the subject of this complaint arises from

what FACEBOOK calls “Sponsored Stories.” “Sponsored Stories” is a deceptive phrase;
“Sponsored Stories” are neither sponsored in the sense that a benefit is being conveyed free of
charge, nor are they stories in the customary sense of the word. They are simply paid
advertisements. FACEBOOK intentionally and knowingly created and developed this
misleading advertising scheme that improperly uses the names, photographs, likenesses and
identities of Plaintiffs to generate substantial profits for FACEBOOK, all without consent, to

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advertise or sell products or services or brands. Plaintiffs each have a right of publicity under

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common and statutory law, which entitles them to be compensated for the use of their names,
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likenesses and/or photographs. Specifically, California Civil Code

§

3344 provides expressly

for such a right. Plaintiffs have been deprived of such compensation by FACEBOOK.
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IL JURISDICTION AND VENUE
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This Court has personal jurisdiction over FACEBOOK because (a) a substantial portion

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of the wrongdoing alleged in this complaint took place in this state, and (b) FACEBOOK is
authorized to do business here, has sufficient minimum contacts with this state, and/or
otherwise intentionally avails itself of the markets in this state through the promotion,
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marketing and sale of products and services in this state, to render the exercise ofjurisdiction
by this Court permissible under traditional notions of fair play and substantial justice. This

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case was removed from California Superior Court pursuant to the Class Action Fairness Act.

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Venue is proper in this Court because FACEBOOK’s headquarters and principal place

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of business are in the City of Palo Alto, County of Santa Clara, State of California. Venue is
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also proper under California Code of Civil Procedure

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17203 as this is a Court of competent

jurisdiction
III. PARTIES

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6.

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resident of Seattle, in King County, Washington. Her name by which her friends and

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Individual Plaintiffs/Class Representatives. Plaintiff Angel Fraley is a citizen and

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acquaintances

know

her,

and

by

.

which

she

is

registered

on

the

website

http://www.facebook.com (“facebook.com”), is Angel Frolicker. At all relevant times herein,
Ms. Fraley was a facebook.com member.

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Plaintiff Susan Mainzer is a citizen and resident of Los Angeles, California in Los

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Angeles County. Her name by which her friends and acquaintances know her, and by which
she is registered on facebook.com, is Susan von Seggern. At all relevant times herein, Ms.

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Mainzer was a facebook.com member.

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At all relevant times herein, Mr. Wang was a Facebook.com member.

Plaintiff Paul Wang is a citizen and resident of Oakland, California in Alameda County.

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Plaintiff James H. Duval is and at all relevant times was a minor, under 18 years of age,

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residing in Contra Costa County, California. At all relevant times herein, James H. Duval was

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a facebook.com member. Mr. Duval is a minor who is concerned about being identified with

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mass-culture and the establishment.

10.
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Plaintiff William Tait is and at all relevant times was a minor, under 18 years of age,

residing in the County of Los Angeles, California. At all relevant times herein, William Tait
was a facebook.com member.

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11.
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Defendant Facebook, Inc. is a corporation organized and existing under the laws of the

state of Delaware that maintains its headquarters and principal place of business in Palo Alto,
California, operating by and under the laws of California. FACEBOOK conducts business

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throughout California, the nation and the world FACEBOOK operates the Internet site

facebook.com.
Defendant Does 1 through 100. Plaintiffs are unaware of the true names and capacities

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of Does 1 through 100, inclusive, and therefore sue such defendants by fictitious names.

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Plaintiffs will amend the complaint to show the true names and capacities of the fictitiously

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named defendants when they are ascertained. Plaintiffs are informed and believe, and on that

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basis allege, that Does 1 through 100 are agents, joint employers, co-conspirators, employees

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and/or representatives of the named defendants. Plaintiffs are informed and believe, and on

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that basis allege, that the fictitiously named defendants are liable to plaintiff and the class

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members, and each of them, for the conduct and damages alleged herein.

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1V. FACTUAL ALLEGATIONS

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13.

Defendant FACEBOOK is an advertising company that owns and operates the world’s

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largest social networking site, facebook.com. FACEBOOK’s purpose as a business entity is to

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generate revenue, which is achieved primarily through the sale of advertising targeted at their

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users. FACEBOOK requires users (“Members”) to register on the site facebook.com in order

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to post content to the site, establish social network relationships within the site, and view most

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of the content produced by other Members. Members receive an Internet presence on

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facebook.com where they can exchange highly personal messages through text, images, audio

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and video, and display equally personal photos, to an explicitly identified group of friends,

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family and acquaintances, as well as those outside of this group. Facebook.com has become

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an integral part of the lives of approximately 600 million people around the world and has

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become the de facto method of communication among friends for a significant portion of

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these Members. Facebook.com has over 153 million Members in the United States. Over 51

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million of these are minors.

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FACEBOOK employs a unique lexicon of doublespeak that takes common English

words and intentionally contorts their everyday meanings in a way beneficial to FACEBOOK,
but misleading to the reader For example, FACEBOOK deploys a graphic with the word

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“Like” on it (“Facebook Like button”) found throughout facebook.com and the Internet.
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When the Facebook Like button appears on third party website, it acts as a link back to the
facebook.com website, allowing a Member to interact with their own FACEBOOK profile.
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Although the Facebook Like button has the text “like” on it, its use does not always

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have anything to do with affinity. Registered Members ofFACEBOOK are enticed to click on

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this button to receive special offers, to gain access to other pages of interest, to see photos, or

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to get notifications of upcoming events, for example. FACEBOOK takes a person’s action of

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clicking on this Facebook Like button and misrepresents that action by publishing to other

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Members an affinity that generally does not exist. The result of this is the Member is falsely

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reported by FACEBOOK to like something they do not. Other examples of such doublespeak

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abound:

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a. A FACEBOOK “friend” (“Facebook Friend”) is anyone with whom one
Member has given explicit privileges to send and receive messages, see postings,

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photos, or other facebook.com actions taken by the Member, as opposed to a person who

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one knows and with whom one has a bond of mutual affection.
b. A FACEBOOK “story” (“Facebook Story”) is text posted by a Member, or a

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Facebook action taken by a Member on facebook.cóm that may appear on a Member’s
Facebook Profile Page and in the Facebook News Feeds of other Members. It is almost

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always a smgle sentence, and unlike the word story as it is properly used, a Facebook
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Story is not an account of an evolution of events about a person or thing. It is almost
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always an ephemeral thought, also referred to as a “status update” in the FACEBOOK

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lexicon.

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c.

FACEBOOK “news” (“Facebook News”) is anything a Member may post on his

or her Facebook Profile Page such as, “My cat is adorable” or “I just woke up.” It is the

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same thing as a Facebook Story.

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d. A FACEBOOK “sponsor” (“Facebook Sponsor”) is an advertiser, not one who

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donates money to an entity or provides funds or resources for a project or activity

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carried out by another. The phrase “Sponsored Stories” is equally misleading

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terminology intentionally employed by FACEBOOK to avoid the negative connotation

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of the common phrase “Paid-for advertisement.”

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16.

To become a Member of facebook.com, a person must register a profile. FACEBOOK

requires its Members to submit their names, email addresses, birth dates, and gender at the
time of registration. Members may upload a Facebook Profile Photo—often, a photograph of
themselves—which is viewable by anyone, regardless of whether they are a Member or not.

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After joining, a Member gets a FACEBOOK “Profile” (“Facebook Profile”) page.

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Within this Facebook Profile page Members can see, among other things, a Facebook “News

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Feed” and a “Wall” (“Facebook Wall”).

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Members are connected to other Members in relationships called “Friends”. A

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Facebook Friend is someone to whom you have given explicit permission to post content to

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your Facebook Wall to see information about you, and to send you messages, among other

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things.
The Facebook News Feed displays status updates, photos, URLs, and the like, known

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stories ,, in the FACEBOOK lexicon, from other facebook.com Members.

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A Member may post information—text, images, web links, and video information—

using a variety of methods. This information is fed into the Facebook News Feed of other
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Members with whom the posting Member is a Facebook Friend.

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Facebook Profile Pages and other pages. FACEBOOK enjoys substantial profits from this.

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that are enabled by default. FACEBOOK requires Members to proactively disable those

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features if Members do not want to employ them. These features include “Places” and

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FACEBOOK sells highly targeted advertising services that place ads on Members’

FACEBOOK offers (or more accurately, imposes upon) Members a variety of features

“Facebook ads.” Many other features cannot be disabled. The advertising scheme known as
“Sponsored Stories” is one of those features that cannot be disabled.

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23.

Posting is the main method of interacting with facebook.com and is a feature that is

always enabled. A Member Posts by adding text, images, web Links, and video information to
his or her “News Feed.”
“Check-in” allows a Member to announce to Friends his or her geographical location

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24.

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within the feature Places. This information is also fed into the Member’s “News Feed.” The

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locations are frequently linked to business establishments. “Check-in” is enabled by default.

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25.

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facebook.com. When Members click on Facebook Like buttons, they make what

The Facebook “Like” feature is a button located on pages both inside and outside of

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FACEBOOK refers to as a “connection” to the associated item. Connections appear in the

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Members’ News Feeds. Members click on the Facebook Like button for many different

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reasons having nothing to do with having an affinity for the associated item. For example, as

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noted above, many members are requested to click on the Facebook “Like” button to get

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discounts on products, support social causes, or jUst to see a humorous image.

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26.

On or around January 25, 2011, FACEBOOK launched a new advertising service called

“Sponsored Stories.” It turns Members’ actions into what appears to be a personally endorsed
advertisement on their Facebook Friends’ pages. When a Member uses a Posts to Facebook
function, Facebook Likes, uses the Facebook Check-in, uses an application or plays a game
that integrates with the Facebook website, and the content relates to an advertiser m some
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way determined solely by FACEBOOK, the interaction can result in the Member’s Facebook
Profile image, name, photograph and/or likeness appearing as an endorsement in a paid

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advertisement. This advertisement appears on the pages viewed by some or all of the Friends
of that Member. Members are unaware their interaction with the website is being interpreted

and publicized by FACEBOOK as an endorsement of those advertisers, products, services or
brands.
In a manner solely determined by FACEBOOK, Sponsored Stories advertisements are

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27.

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each uniquely and independently generated and shown to FACEBOOK Members based on

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how that Member’s Facebook Friends have interacted with the facebook.com website. For

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example, when a Member logs into the facebook.com website and views a page, the website

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determines if one of the Member’s Facebook Friends has ‘Liked” a certain product, and if so

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displays a Sponsored Story advertisement that draws an endorsement connection between the

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Facebook friend and the product. Thus, Members do not create the advertisements or the

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content of those advertisements in any meaningful way; FACEBOOK does.

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28.

The Class members were not asked for their consent to appear in such advertisements.

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part, as well as the entire advertisement itself.
30.

FACEBOOK creates and develops the content of those advertisements in whole or in

The Sponsored Stories advertisement service is enabled for all Members. Members are

unable to opt-out of the service.
31.

FACEBOOK’s terms of use is comprised of the Statement of Rights and

Responsibilities (http://www.facebook.com/terms.php?rel=pf’), Privacy Policy
(http:/Iwww.facebook.conilpolicy.php), and a variety of references found with tremendous

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difficulty—if at all—throughout the Facebook.com site (collectively referred to as “Terms of
Use” hereafter.)

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Members can prohibit the use of their name and Facebook Profile picture in all

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advertisements:

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FACEBOOK’s Terms of Use intentionally mislead Members into believing that

You can use your privacy settings to limit how your name and [Facebook]
profile picture may be associated with commercial, sponsored, or related content
(such as a brand you like) served or enhanced by us. You give us permission to
use your name and [Facebook] profile picture in connection with that content,
subject to the limits you place.

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Statement of Rights and Responsibilities, Section 10.1,
http://www.facebook.comIterms.php?ref=pf.

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33.

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Regarding Posts by a Member, The Privacy Policy states, “You can control exactly who

can see it at the time you create it.” (Privacy Policy, Section 3,

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http://www.facebook.com/policy.php).

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prevent a Post, Like, Check-in or application from taking a Member’s name, photograph,

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likeness or identity and using it as an endorsement for a Sponsored Story advertisement. From

In spite of the above misleading assertions in the Tenns of Use, a Member cannot

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All references to Internet citations in this Complaint refer to URLs last visited June 6, 2011, unless
otherwise noted.
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a buried Help Center page, not connected by any link within the Privacy Policy or Statement

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of Rights and Responsibilities pages, FACEBOOK publishes the following question and

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answer:

Can I opt out of seeing or being featured in sponsored News Feed stories? While
there is no way to opt out of seeing all or being featured in any Sponsored
Stories, you can remove specific stories by clicking the “X” displayed in the
upper right side of a story and choosing the appropriate option when prompted.

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Sponsored Stones, http://www.facebook.conilhelp/?faq= 19723.

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35.

Thus, FACEBOOK is telling Members on the one hand that Members can control who

can see their information, but on the other hand, that Members cannot prevent their identities
from being used in advertisements shown to others.
The Terms of Use are worded in a way difficult for Members to understand.

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FACEBOOK, itself acknowledges this:
Many websites’ privacy policies are challenging for people to understand
because they are often written for regulators and privacy advocates, not the
majority of people who actually use those websites. Our own privacy policy has
been criticized as being “5830 words of legalese” and “longer than the U.S.
constitution without the amendments.” Okay, you’re right. We agree that
privacy policies can and should be more easily understood...

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—

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A Privacy Policy Posted Re-imagined For Users Like You, Facebook Site Governance
(Feb. 25, 201 1), https://www.facebook.comlfbsitegovernance

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A Member is never required to read or agree to the Terms of Use.

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38.

Sponsored Story advertisements did not exist at the time the Class Members first

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registered.

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drastic changes to FACEBOOK’s advertising scheme.

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With regard to Sponsored Stories’ launch, FACEBOOK never notified Members of the

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No consent is sought or received by FACEBOOK to convert a Member’s action on the

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website into an endorsement of the advertiser.
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Where a Member is a minor, no consent for use of the Member’s name, photograph,

likeness or identity is sought or received from the minor’s parent or legal guardian.

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The Nielsen Company, which is a company that provides clients the most complete

understanding of what consumers watch and why they purchase (i.e., how people respond to
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advertising), and is frequently quoted by Facebook, has determined that advertising consisting
of recommendations by friends, such as “Sponsored Stories,” is the most effective form of

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advertising.

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Sponsored Stories) as “the Holy Grail” in advertising, touting its higher value compared to

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other advertisement schemes.

FACEBOOK has repeatedly referred to friend-endorsed advertisement (such as

Nothing influences people more than a recommendation from a trusted friend. A
trusted referral influences people more than the best broadcast message. A
trusted referral is the Holy Grail of advertising.

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Mark Zuckerberg, FACEBOOK CEO
Claire Hoffman, The Battlefor Facebook, Rolling Stone, Sept. 15, 2010.

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Marketers have always known that the best recommendation comes from a
friend.. ..This, in many ways, is the Holy Grail of marketing.

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Sheryl Sandberg, FACEBOOK COO
“It’s All About People’ with Sheryl Sandberg at TAB MIXX [HQ],” Sept. 28, 2010,
http://www.facebook.comlvideo/video.php?v=7607 18736391.

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Facebook.com ad, per FACEBOOK’S own statements:

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The value of a Sponsored Story advertisement is at least twice the value of a standard

Ads shown with the names of people’s friends are twice as effective as those
without
Guide to the New Facebook Ads Manager, Page 3,
bttp://ads.ak.facebook.comladstFacebookAdslTheNewAdsManager_May2O 11 v2.pdf.
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45.

FACEBOOK Chief Operating Officer (“COO”) Sheryl Sandberg states that such

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friend-endorsed advertisements are actually three hundred percent more valuable than non-

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friend advertisements:
When a customer has a good experience.. .on Facebook, the average action is
shared with the average number of friends, which is 130 people. This is the
illusive goal we’ve been searching for, for a long time; Making your customers
Your marketers.

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On average, if you compare an ad without a friend’s endorsement, and you
compare an ad with a friend’s [Facebook] “Like”, these are the differences: on
average, 68% more people are likely to remember seeing the ad with their
friend’s name. A hundred percent—so two times more likely to remember the
ad’s message; and 300% more likely to purchase.

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Sheryl Sandberg, FACEBOOK COO,
“It’s All About People’ with Sheryl Sandberg at JAB MDCX [HQ],” Sept. 28, 2010,
http://www.facebook.comlvideo/video.php?v=7607 18736391.

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46.

Thus FACEBOOK, through Sponsored Stories advertisements, is attempting to make

the approximately 153 million Facebook Members in the United States into their marketers,
but without any compensation. In spite of the increased value of friend-endorsed
advertisements, the Member is deprived of any payment whatsoever for the use of his or her
photo, name, likeness or any other information used in the endorsed advertisement.
Members have an expectation interest in the use of their identities in Sponsored Story

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47.

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advertisements, from which FACEBOOK derives significant advertising revenue. The value

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of the endorsement compared to non-endorsed advertisements is used by FACEBOOK to sell

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the Sponsored Story product to advertisers. Plaintiffs are not paid by FACEBOOK for the use

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of their name, photograph and/or likeness in the advertisement. FACEBOOK receives

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substantial and ever-increasing revenue from the sale of such advertisements.

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48.

The Terms of Use contain the following choice of law clause:
You will resolve any claim, cause of action or dispute (“claim”) you have with
us arising out of or relating to this Statement or Facebook exclusively in a state
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or federal court located in Santa Clara County. The laws of the State of
California will govern this Statement, as well as any claim that might arise
between you and us, without regard to conflict of law provisions. You agree to
submit to the personal jurisdiction of the courts located in Santa Clara County,
California for the purpose of litigating all such claims.

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Statement of Rights and Responsibilities, Section 15.1,
http://www.facebook.com/terms.php?refpf.
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49.

All decisions as to the content of the Terms of Use, content of the Statement of Rights

and Responsibilities, and the decisions as to whether or if to garn consent from Members for
their use in Sponsored Stories, were made in FACEBOOK’s California headquarters by
FACEBOOK executives and employees. All decisions as to how to implement and market
the Sponsored Stories advertising campaign were also made in FACEBOOK’s California

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headquarters by FACEBOOK executives and employees.
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Facts Common to Plaintiffs’ Actions

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50,

Plaintiffs each registered a facebook.com account prior to January 25,2011.

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51.

The Sponsored Stories advertising scheme did not exist at the time Plaintiffs registered

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with facebook.com.
52.

Plaintiffs did not agree to allow FACEBOOK to use their names, photographs, or

likenesses in an advertisement as an endorsement.
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53.

Plaintiffs had not, and could not have been expected to have had any exposure to the

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unique and novel advertising scheme Sponsored Stories. FACEBOOK had not previously

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employed advertising schemes that converted a user’s website interaction into an endorsed

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advertisement. For this reason, Plaintiffs reasonably bad no expectation that their names,

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photographs or likenesses would be used to endorse products, services, goods or brands when

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they took any sort of FACEBOOK action as described below.

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1

54.

2

without consent in each of the respective advertisements described below.
55.

‘

FACEBOOK used each Plaintiff’s user name, Facebook Profile photo, and/or likeness

Each Plaintiff’s name and photo had been provided to FACEBOOK earlier for purposes

unrelated to the advertisement in question as required or requested by FACEBOOK.

56.

Each advertisement described below used the respective name of the advertiser and

image related to the advertiser.
8

57.

Each advertisement described below combined all of the respective elements described

below, heretofore unrelated to one another, into new content appearing on facebook.com.
10

58.

11

advertisement, the content, and the advertisement scheme by which each advertisement was

12

created.

13

59.

FACEBOOK was solely responsible for the creation and development of each

Each advertisement was new, original and unique content created and developed in

14

whole or in part by FACEBOOK.
15

In each advertisement, the respective Plaintiff appears to be endorsing the respective

16

60.

17

advertiser when in fact, he or she does not.

18

61.

19

result in the appearance of him or her endorsing the respective advertiser in a commercial

20

advertisement.

21
22

62.

No Plaintiff knew that clicking on the Facebook Like button, as described below, would

No Plaintiff consented to the use of his or her name, photo or likeness in any

advertisement. Where a Plaintiff is a minor, that mmor’s parent did not give consent.

23
24

63.

Each Plaintiff was deprived the monetary value of having his or her endorsement

25

appear in that advertisement, and therefore was deprived of money to which he or she was

26

entitled.

27

28

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64.

Each Plaintiff has been personally injured by this loss of money. The injury to Plaintiffs

2

is not outweighed by any countervailing benefits to them or other consumers.

3

Angel Fraley
65.

Prior to January 25, 2011, Ms. Angel Fraley uploaded a Facebook Profile picture of

herself that clearly bears her likeness.
6
7

8

66.

Sometime on or before March 7, 2011, Ms. Fraley clicked on a Facebook “Like” button

on the facebook.com page for Rosetta Stone. She did this not because she likes Rosetta Stone,
but because she believed she had to in order to try a free software demonstration. See Exhibit

10

1 hereto, a true and correct copy of a printout of the page on March 10, 2011 and similar to
the page upon which Ms. Fraley acted.
On March 7, 2011, and on many subsequent days thereafter, Ms. Fraley’s Facebook

12

67.

13

user name, Angel Frolicker, and her Facebook Profile picture bearing her likeness in the form

14

of a photograph appeared in a Rosetta Stone advertisement on facebook.com. It was shown to

15

at least one other Facebook Member. Ms. Fraley’s Facebook “friends” know and recognize

16

her by her online user name. Exhibit 2 hereto is a true and correct copy of the screen shot

17

showing the Sponsored Story advertisement. (Personal identifying information has been

18

redacted from the screen shot.)

19

20

68.

The advertisement included a sentence authored solely by FACEBOOK, “Angel

Frolicker likes Rosetta Stone.”

21

Susan Mainzer

22
23

24

69.

Prior to January 25, 2011, Ms. Mainzer uploaded a Facebook Profile picture of herself

that clearly bears her likeness in the form of a photograph,
Sometime on or before February 12, 2011, Ms. Mainzer clicked on a Facebook “Like”

25

70.

26

on the facebook.com page for UNICEF. She did this to support UNICEFF in a campaign to

27
28

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reduce the deaths of children. See Exhibit 3 hereto, a true and correct copy of a printout of the

2

page on April 12, 2011 and similar to the page earlier seen by Ms. Mainzer.
71.

‘

On February 12, 2011, and again on many subsequent days, Ms. Mainzer’s name and

photograph and/or likeness appeared in a UNICEF advertisement on facebook.com. It was
shown to at least one other Member,

6
72.
8

The advertisement included a sentence authored solely by FACEBOOK, “Susan von

Seggem likes UNICEF.”
Paul Wang

9

Sometime on or before March 10, 2011, Mr. Wang clicked on a Facebook “Like”

10

73.

ii

button found on the facebook.com page for “Warrior Dash.” He did this not because he had

12

an affinity for Warrior Dash—in fact, Mr. Wang had minimal familiarity with the advertiser

13

and only clicked on the Facebook Like button because that was the only way to see photos

14

about this intriguing event. See Exhibit 4 hereto, a true and correct copy of a screen shot of

15

the page, taken May 25, 2011 and similar to the page as earlier seen by Mr. Wang with the

16

same Warrior Dash enticement.

74.
18
19

On March 17, 2011 and again on many other days, Mr. Wang’s name appeared in a

Warrior Dash advertisement on facebook.com. It was shown to at least one other Facebook

Member.

20
The advertisement included a sentence authored solely by FACEBOOK, “Paul Wang

21
22

likes Warrior Dash.”
Jimmy Duval

23

Prior to April 7, 2011, Mr. Duval uploaded a Facebook Profile picture of himself that

24

76.

25

clearly bears his likeness in the form of a photograph. He has added the nickname “Bassnutt”

26

to his username on Facebook.

27

28

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Sometime on or beforeApril 7, 2011, Mr. Duval clicked on a Facebook “Like” button

i

77.

2

found on the facebook.com page for PopCorners. He did this to get a special offer code not

3

because he had an affinity for PopCorners. See Exhibit 5 hereto, a true and correct copy of a

4

printout of the page on May 4, 2011, similar to that which enticed Mr. Duval to click on the

5

Facebook Like button.

6

78.

On April 7, 2011, and again on many subsequent days, Mr. Duval’s name and said

photograph appeared in a PopCorners advertisement on facebook.com. It was shown to at
8

least one other Facebook Member. Exhibit 6 hereto is a true and correct copy of the ad.

9

10

79.

The advertisement included a sentence authored solely by FACEBOOK, “Jimmy

Bassnut Duval likes PopCorners.”
At no point did FACEBOOK seek or obtain consent from his parents or other legal

12

80.

13

guardians to use his name or likeness as required under California law. California Civil Code

14

§ 3344(a) expressly requires the prior written consent of a minor’s guardian to the use of his

15

or her name or likeness.

16
17

18
19

20

22
23

24

William Tait
81.

Prior to March 30, 2011, Mr. Tait uploaded a Facebook Profile picture of himself that

clearly bears his likeness in the form of a photograph. He is a runner, and even though this
image does not show his face, his Facebook Friends know that this image is his likeness,
uniquely associated with Mr. Tait.
82.

Sometime on or before March 30, 2011, Mr. Tait clicked on a Facebook “Like” button

found on the facebook.com page for Warrior Dash. He did this to win “Warrior prize packs,”
see photos from previous events, or get updates about the event. See Exhibit 5 hereto, a copy

25

of a screen shot of the page, taken May 25, 2011 and similar to the page as earlier seen by Mr.

26

Tait with the same Warrior Dash enticement.

27

28

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On March 30, 2011, and again on many subsequent days, Mr. Tait’s name and said

2

photograph appeared in a Warrior Dash advertisement on facebook.com It was shown to at

3

least one other Facebook Member. Exhibit 7 hereto is a true and correct copy of a print out of

4

thead.
84.

6

L

The FACEBOOK-created ad employs his name and photograph, and says, “William

Tait and Paul Wang like Warrior Dash.” Mr. Tait did not author that sentence, FACEBOOK
did.

8
85.
10

At no point did FACEBOOK seek or obtain consent from William Tait’s parents or

other legal guardians to use his name or likeness as required under California law.

ii

86.

12

likenesses of the PlaintiffsPlaintiffs did not create these Sponsored Story advertisements, nor

13

did they intend to have these advertisements created.

14

87.

Advertisers did not create those advertisements.

88.

In other words, Plaintiffs’ pictures, names and likenesses were made to appear as part

Facebook created the Sponsored Story Advertisements featuring the names and

15
16
17

18
19

20
21

of advertisements created by FACEBOOK. Plaintiffs’ Facebook Friends then saw
advertisements appearing on the facebook.com pages of those Facebook Friends, with
Plaintiff Fraley, Plaintiff Wang, Plaintiff Mainzer, Plaintiff James H. Duval, or Plaintiff Tait’s
Facebook Profile image combined with statements never made by Plaintiffs, such as “Angel
Fraley likes Rosetta Stone,” “Paul Wang likes Warrior Dash,” “Susan Mainzer likes

22

UNICEF,” “Jimmy Bassnut Duval. likes PopCorners,” or “William Tait likes Warrior Dash.”

23

These statements were, in fact, created in whole by FACEBOOK.

24

89.

25

Profile photos and names of Plaintiffs which Plaintiffs unwittingly provided for unrelated

26

(and/or required) purposes at some point earlier in time, along with the name and image of an

FACEBOOIC, and FACEBOOK alone, took those sentences it created, the Facebook

27
28

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advertiser, and combined them to create unique, original advertisements in which the Member

2

Plaintiff had no idea, much less intention, he or she would appear.
90.

Neither Plaintiffs nor the parents of the minor Plaintiffs ever consented to the use of

their names, photographs likenesses, or identities to advertise or sell products or services or
brands through the Facebook Sponsored Stories advertising service. Plaintiffs and the parents
6
7

of the minor Plaintiffs reasonably believed that their names and likenesses would not be so
used.

8
91.
10
11
12

The value to an advertiser of using the name, photograph, likeness or identity of a

Friend in an advertisement is measurably higher than that of using the identity of a person
unconnected with the person to whom the advertisement is being shown. That value is
measurable in dollars on an individual and on a class-wide basis.

13

92.

Plaintiffs had a financial interest in the use of their identities in these advertisements.

14

93.

Plaintiffs were deprived of their financial interest, and were thus harmed.

15

V. CLASS ACTION ALLEGATIONS
16

Plaintiffs seek certification of this action as a class action pursuant to Rule 23(b)(3) of

17

94.

18

the Federal Rules of Civil Procedure.

19

95.

20
21

22
23

Plaintiff Class. The class sought to be represented is defined as follows:
All natural persons in the United States who had an account registered on
facebook.com as of January 24, 2011, and had their names, photographs,
likenesses or identities associated with that account used in a Facebook Sponsored
Stories advertisement (“the Class”).

24
25

Subclass of Mmors.

26
27

28

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All persons in the Plaintiff Class who additionally have had their names,

2

photographs, likenesses or identities used in a Facebook Sponsored Stories ad

3

while under 18 years of age (“the Minor Subclass”).
Excluded from the Class are (a) FACEBOOK, its officers and directors, legal
representatives, successors or assigns; (b) any entity in which FACEBOOK has or

6

had a controlling interest; (c) the judge to whom this case is assigned and the
judge’s immediate family; (d) any juror selected to hear this case.

8
9

10

96.

The Class is comprised of millions of persons, and is therefore so numerous that joinder

in this action would be impracticable. The disposition of their claims through this class action
12

will benefit Class Members, the parties and the courts. Upon information and belief,

13

FACEBOOK has over 600 million Members worldwide, and potentially over 153 million

14

persons in the Class, and over 51 million persons in the Minor Class.

15

97.

16

Members of the Class are available through FACEBOOK’s electronic records.
98.

19
20

Upon information and belief, the identities and contact information of the individual

Common questions of law and fact affecting the Class predominate over any individual

issues. These questions of law and fact include, but are not limited to, the following:
•

photographs, likenesses, or identities in Sponsored Story advertisements;

21
22

Whether Plaintiffs and the Class consented to the use of their names,

•

Whether FACEBOOK gained a commercial benefit or some other advantage

23

by using Plaintiff and the Class’ names, photographs, likenesses, or identities

24

in Sponsored Stories advertisements;

25

26

•

Whether Plaintiffs and the Class were harmed by the nonconsensual use of
their names, photographs, likenesses, or identities in Sponsored Story

27

28

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advertisements, and whether FACEBOOK’s conduct was a substantial factor

2

in causing that harm;

3

.

conduct, and, if so, what is the measure of those damages;

4
5

Whether Class Members are cntitled to damages as a result of FACEBOOK’s

•

6

Whether FACEBOOK’s conduct described herein violated California’s Unfair
Competition Law (Cal. Bus. & Prof. Code § 17200, et seq.);

• Whether FACEBOOK was unjustly enriched as a result of its conduct
8

described herein;
• Whether FACEBOOK violated California Civil Code § 3344; and

to

.

.

11

What the value of an endorsement by a non-celebrity is in a social network
advertisement.

12

13
14

FACEBOOK engaged in a common course of conduct giving rise to the legal rights
sought to be enforced by Class Members. Similar or identical statutory and common law

15

violations, business practices and injuries are involved. Therefore, individual questions, if

16

any, pale by comparison to the numerous common questions presented.

17

100. The injuries sustained by Members of the Class flow, in each instance, from a common

18

nucleus of operative facts. In each case, FACEBOOK caused or permitted the unauthorized

19

appropriation of the Plaintiff and the Class Members’ names, photographs, likenesses or

20

identities without adequate or any notice, consent, or opportunity to withdraw from

21

participation.

22
23

24

101. Given the similar nature of the Class Members’ claims and the absence of material
differences in the statutes and common laws upon which the Class Members’ claims are
based, a nationwide class will be easily managed by the Court and the parties.

25

26
27

28

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1

102. Because of the relatively small size of the individual Class Members’ claims, no Class

2

Member could afford to seek legal redress on an individual basis. A class action is superior to

3

any alternative means of prosecution.
103. The representative P1aintiff’ claims are typical of those of the Class and Subclass, as
all Members of the Class are similarly affected by FACEBOOK’s uniform and actionable

6

conduct as alleged herein.

7

8

104. FACEBOOK has acted and failed to act on grounds generally applicable to Plaintiffs
and the other Members of the Class and Subclass, requiring the Court’s imposition of uniform

10

relief to ensure compatible standards of conduct toward the Members of the Class.

ii

105. Plaintiffs will fairly and adequately protect the interests of the Class and Subclass, and

12

have retained counsel competent and experienced in class action litigation. The class

13

representatives have no interests which conflict with or adverse to those of the other Class

14

members.

15

106. Plaintiffs reserve the right to revise the above class definition based on facts learned in

16

discovery.

17
FIRST CAUSE OF ACTION

18

19

(Violation of California’s Right of Publicity Statute, Civil Code § 3344)

20

107. Plaintiffs incorporate each of the foregoing allegations as if fully set forth herein.

21

108. California’s Right of Publicity Statute, California Civil Code

22

persons from the unauthorized appropriation of the person’s identity by another for

23

commercial gain.

24
25

§

3344 et seq. protects

109. During the Class period, FACEBOOK (and Does 1-100) knowingly used Plaintiffs’
names, photographs, or likenesses to directly advertise or sell a product or service.

26
27

28

110. FACEBOOK (and/or Does 1- 100) did not have Plaintiffs’ consent to do so.
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1

111. Plaintiffs received no compensation or other consideration for FACEBOOK’s (and/or

2

Does 1-100’s) use thereof.
112. Plaintiffs were harmed by FACEBOOK’s (and/or Does 1-100’s) actions.

4

113. Use of Plaintiffs’ names, photographs, and likenesses were directly connected to
5

6

FACEBOOK’s (and/or Does 1-100’s) commercial use.
114. FACEBOOK’s (and/or Does 1-100’s) actions were a substantial factor in causing
Plaintiffs’ harm.

9

10

12

13

115. The advertisements were not used in conjunction with news, public affairs, a sports
broadcast or account, or a political campaign.
116. Each incident is a separate and distinct violation of California Civil Code § 3344.
117. Plaintiffs and Members of the Class therefore seek injunctive relief, and other such

14

preliminary and other equitable or declaratory relief as may be appropriate.

15

118. Plaintiffs and Members of the Class also seek remedy as provided for by California Civ.

16

Code

17

any profits attributable to FACEBOOK’s (and Does 1-100’s) illegal action, before taking into

18

account any actual damages, punitive damages, attorneys fees and costs, and any other relief

19

as may be appropriate.

§

3344(a) in the amount equal to the greater of $750 per incident, or actual damages,

20

SECOND CAUSE OF ACTION

21

22

(Violation of Cal. Bus. & Prof. Code § 17200)

119. Plaintiffs mcorporate each of the foregomg allegations as if fully set forth herein.

23
24

120. As described herein, FACEBOOK’s (and Does 1-100’s) nonconsensual use of its

25

Members’ names, photographs, and likenesses is a violation of California’s Right to Publicity

26

Statute, Civil Code

§ 3344.

27

28

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121. These violations satis1 the “unlawful” prong of the Unfair Competition Law (“UCL”),
2

Cal. Bus. & Prof. Code

17200, et seq.

122. FACEBOOK (and Does 1-100’s) also violated the “fraudulent” prong of the UCL by
“

intentionally and knowingly misrepresenting that Members have full control to prevent their
appearance in Facebook advertising, including Sponsored Story advertisements. FACEBOOK

6

(and Does 1-100) did so with the intent of getting Members to register with facebook.com,

and to participate in ads even while FACEBOOK (and Does 1-100) knew there was no
8

meaningful way to prevent one’s name, photograph, likeness or identity from appearing as an
endorsement in Sponsored Stories advertisement. Moreover, FACEBOOK (and Does 1— 100)
intentionally misrepresented a Member’s ability to prevent his or her appearance in

11

12

advertisements so FACEBOOK could enjoy substantial profits by having users unwittingly
appear in such ads. Plaintiffs justifiably relied upon those misrepresentations when deciding

13

14

to join FACEBOOK and when performing FACEBOOK actions such as clicking on the
Facebook Like button. Plaintiffs suffered damages of deprivation of money earned by the
misrepresentations, the amount to be proven at trial.

17

123. Alternatively, to the degree the Terms of Use may have been modified at a later time to

18

truthfully represent a Member’s inability to meaningfully opt Out of Sponsored Story

19

advertisements, FACEBOOK violated the “fraudulent” prong of the UCL by knowingly and

20

intentionally failing to seek and acquire informed consent regarding such changes to the

21

Terms of Use.

22

124. FACEBOOK (and/or Does 1- 100) also violated the “unfair” prong of the UCL by

23

leading Members to believe they could opt out of advertising endorsements, encouraging

24

Members to weave Facebook.com into their lives such that it becomes indispensable, and then

25

introducing an advertising service from which Members are unable to opt out.

26
27
28

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125. FACEBOOK (and/or Does 1- 100) violated the “unfair” prong of the UCL by
2

intentionally profiting from the nonconsensual endorsements extracted from Members

3

without sharing those profits with those Members.
126. FACEBOOK’s (and/or Does 1- 100’s) unfair, deceptive and fraudulent practices

originated from and/or occurred primarily in California. Decisions concerning the creation of
6

Sponsored Story advertisements were made in California, FACEBOOK maintains all or a
substantial part of its computer systems that serve Facebook.com in California, and all or a

8

substantial part of the code and content that create and/or comprise Sponsored Story
advertisements is developed and deployed within and from California.

10

127. Pursuant to Cal. Bus. & Prof. Code

§

17203, P1aintif1 seek an order of this Court

12

permanently enjoining FACEBOOK (and Does 1-100’s) from continuing to engage in the

13

unlawful, unfair and fraudulent conduct described herein. Plaintiffs seek an order requiring

14

FACEBOOK (and/or Does 1- 100) to (1) immediately cease the unlawful practices stated in

15

this Complaint, and (2) award Plaintiff and the Class reasonable costs and attorneys’ fees

16

pursuant to Cal. Code of Civ. Proc.

17

128. Plaintiffs have a vested monetary interest in their appearance in FACEBOOK ads, and

18

FACEBOOK has deprived them of that interest.

19

20

.

.

§

1021.5.

.

129. Plaintiffs each lost money to which they were entitled in the form of compensation for
the use of their images and names, and in which they had a vested interest, by virtue of
FACEBOOK’s (and Does 1-100’s) conduct. They are entitled to restitution of such sums.

22
23
24

THIRD CAUSE OF ACTION
(Unjust Enrichment)

25

130. Plaintiffs incorporate each of the foregoing allegations as if fully set forth herein.

26

131. Plaintiffs and the Class have conferred a benefit upon FACEBOOK (and Does 1-100).

27

FACEBOOK (and Does 1-100) has received and retained money from advertisers, a portion

28

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i

of which belong to Plaintiffs and the Class as a result of co-opting Members names,

2

photographs, likenesses and identities, and placing them in paid-for advertisements—

3

Sponsored Stories—as described herein.

‘

132. FACEBOOK (and Does 1-100) appreciates or has knowledge of said benefit.
133. Under principles of equity and good conscience, FACEBOOK (and Does 1-100) should
not be permitted to retain money belonging to Plaintiffs and the Class that it unjustly received

8

as a result of its actions.
134. Plaintiffs and the Class have suffered loss as a direct result of FACEBOOK’s (and Does

io

1-100) conduct.

11

135. Plaintiffs, on their own behalf and on behalf of the Class, seek the imposition of a

12

constructive trust on and restitution of the proceeds FACEBOOK (and Does 1-100) received

13

as a result of its conduct described herein, as well as attorney’s fees and costs pursuant to

14

California Civ. Proc. Code

§

1021.5.

15

16

136. PRAYER FOR RELIEF WHEREFORE, Plaintiffs individually and on behalf of the
Class, pray for the following relief:

17
18

.

defmed above, appoint Plaintiffs Angel Fraley, Paul Wang, Susan

19

Mainzer, James H. Duval by and through James Duval, and William

20

Tait by and through Russell Tait, as class representatives, and appoint

21

their counsel as Class co-counsel;

22
23

Certification of this case as a class action on behalf of the Class

•

A declaration that FACEBOOK’s actions, as described herein, violate

24

the California Right to Publicity Act (Cal. Civ. Code

25

the Unfair Competition Law, and have led to unjust enrichment;

26
27
28

•

§ 3344), violate

An award of injunctive and other equitable relief as is necessary to
protect the interests of the Plaintiffs and the Class, including, inter

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1

alia, an order prohibiting FACEBOOK from engaging in the wrongful

2

and unlawful acts described herein;

3

•

Disgorgernent or restitution by FACEBOOK of all revenue earned

4

from its Sponsored Story advertisements feature during the class

5

period;

6

•

An award of damages, including statutory damages where applicable,
to Plaintiffs and the Class in an amount to be determined at trial;

8

•

An award of all economic, monetary, actual, consequential, and
compensatory damages caused by FACEBOOK’s (and Does 1-100’s)

10

conduct, and if its conduct is proved willful, award Plaintiffs and the

11
12

Class exemplary damages;
•

13
14

An award of restitution against FACEBOOK (and Does 1-100’s) for
alL money to which Plaintiffs and the Class are entitled in equity;

• An award to Plaintiffs and their Class Counsel of their reasonable

15

litigation expenses and attorneys’ fees;
•

interest, to the extent allowable; and

18

19

An award to Plaintiffs and the Class of pre- and post-judgment

•

Such other and further relief as equity and justice may require.

20

JURY TRIAL DEMANDED

21

Plaintiffs demand a jury trial on all issues so triable.

22
23

24
25

26
27
28

By

/

Z-_

ROBERTS. ARNS
JONATHAN E. DAVIS
STEVEN R. WEINMANN
THE ARNS LAW FIRM
515 Folsoin Street, 3rd Floor
San Francisco, CA 94105
Tel: [phone]
Fax:

[phone]

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3
4
5
6

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By__________
JONATHAN M. JAFFE
JONATHAN JAFFE LAW
3055 Hillegass Avenue
Berkeley, CA 94705
Tel: [phone]
Fax: [phone]
Attorneys for Plaintiffs

7

8
9
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Case5: 11 -cv-O 1 726-LHK Document22

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