Knowles v. Google, Inc.

Filing 1

COMPLAINT against Google, Inc. ( Filing fee $ 350 receipt number 0416-3570148.), filed by Matthew C Knowles.(Gracie, Kevin)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
BALTIMORE (NORTHERN) DIVISION
Matthew C. Knowles, individually, and on
behalf of all similarly situated persons,
Plaintiff,
CIVIL ACTION NO. __________________
vs.
(JURY TRIAL DEMANDED)
Google, Inc.,
Defendant.
CLASS ACTION COMPLAINT
Plaintiff, Matthew C. Knowles, individually, and on behalf of the class described below,
brings this state-wide class action suit against Defendant, Google, Inc. (hereinafter “Google”),
and would respectfully show unto the Court the following:
PARTIES
1.

Plaintiff is a citizen of the State of Maryland, and resides in Baltimore County,

Maryland, which is within the Baltimore Division of the District of Maryland.
2.

Google is a corporation organized and existing under the laws of the State of

Delaware, with its principal place of business at 1600 Amphitheatre Parkway, Mountain View,
California.
3.
officers,

At all times relevant herein Google was acting individually and by and through its
agents, servants and/or employees in the course and scope of their agency and

employment.
JURISDICTION AND VENUE

4.

The Court has original jurisdiction of this matter, inter alia, under the Class

Action Fairness Act (“CAFA”), 29 U.S.C. § 1332(d)(2). Plaintiff and Defendant are citizens of
different states, the amount in controversy in this action exceeds $5,000,000.00, there are more
than one hundred (100) members of the putative class and all class members are citizens of the
State of Maryland.
5.

The Court has general and specific personal jurisdiction over the Defendant

Google due to its sufficient minimum contacts within the State of Maryland and because the
material acts upon which Plaintiffs’ claims are based occurred within the District of Maryland.
6.

Venue is proper in the United States District Court, District of Maryland,

Baltimore Division, pursuant to 28 U.S.C. § 1391(b) in that Defendant Google resides in the
District of Maryland under 28 U.S.C. § 1391(c)(2) and a substantial part of the events giving rise
to the claims occurred within the State of Maryland.
NATURE OF SUIT
7.

Plaintiff brings this state-wide class action lawsuit against Google pursuant to

F.R.C.P. 23 for violation of the Maryland Wiretap Act, codified at Md. Code Ann. §10-402. et
seq. Specifically, Plaintiff alleges the Defendant has violated the Maryland Wiretap Act through
its intentional interception and use of electronic communications sent by Plaintiffs and members
of the Putative Class in Maryland to Google’s “Gmail” account holders within Maryland.
8.

Google operates an e-mail service known as “Gmail”. Gmail account holders are

assigned a Gmail e-mail address by Google through which they can send and/or receive
electronic communications.

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9.

Upon

methodologies,

information

and

belief

Google,

utilizing

multiple

devices

and

intercepts and scans all electronic communications sent to Gmail account

holders prior to their receipt and review by the Gmail account holder/recipient.
10.

The actions complained of herein involve the interception and use of content from

Plaintiff’s and Class Member’s Maryland electronic communications (e-mail) whose e-mails are
sent to a Maryland Gmail account holder, whether through the initialization of an electronic
communication to the Gmail user, a response or reply to an electronic communication from the
Gmail user, or any subsequent new electronic communication transmitted by Plaintiff and/or
Class Members to a Gmail user.
11.

Google’s systematic interception and use of electronic communications sent from

Plaintiff and other non-Gmail account holders/users violates Md. Code Ann. §10-402 et seq.
FACTS
12.

Google owns and operates one of the world’s largest internet search engines.

Google offers many services, including e-mail address and internet usage, for free to attract large
numbers of customers or users. Google generates revenue by selling on-line advertising which is
aimed at its customers/users utilizing its free services. Google is able to attract more advertisers
or charge higher advertising prices by virtue of attracting more customers/users or usage of
Google services than other internet search engines or service providers.
13.

“Gmail” is an electronic communication service operated by Google.

14.

Google

assigns

Gmail

account

holders

a

Gmail

e-mail

address

([e-mail]) for the purposes of sending and receiving electronic communications
through the electronic communication service operated by Google (i.e. Gmail). Gmail account

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holders can receive electronic communications from other Gmail account holders and from [e-mail] account holders.
15.

Plaintiff has sent and continues to send electronic communications in Maryland to

@gmail.com account holders in Maryland.
16.

Upon information and belief, prior to the Gmail users ever receiving Plaintiff’s e-

mail, Google intercepts Plaintiff’s e-mail. Google’s interception of Plaintiff’s confidential email communications without Plaintiff’s knowledge, consent or permission is in violation of Md.
Code Ann. §10-402, et seq.
17.

Google is not an intended recipient of or a party to Plaintiff’s e-mails sent to

Gmail users in Maryland.
18.

The devices used by Google are not a telephone or telegraph instrument, they are

not telephone or telegraph equipment, they are not a telephone or telegraph facility, and they are
not any component thereof. Therefore, any exception set out in Md. Code Ann. §10-401 does
not apply.
19.

Google’s interception and use of content of electronic communications from

Plaintiff and the Class Members is not within the ordinary course of business of an electronic
communication service such as an email provider, is not a necessary incident to providing email
services and does not functionally enhance providing email service to Gmail account holders.
20.

Within the Class Period, Plaintiff has sent and continues to send e-mails to Gmail

account holders in Maryland from various locations within Maryland.
21.

Plaintiff’s e-mails are electronic communications.

22.

At the time Plaintiff sent the e-mails to @gmail.com account holders, Plaintiff did

so from his Yahoo® account.
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23.

Upon information and belief, Google intentionally intercepted and used the

content of Plaintiff’s e-mails to @gmail.com account holders.
24.

Google did not compensate Plaintiff for the interception and use of the content of

Plaintiff’s e-mail or the use of the content of Plaintiff’s e-mail, did not have his permission or,
indeed, even advise Plaintiff that his emails to @gmail.com account holders within Maryland
were being intercepted and used by Google for its own purposes.
CLASS ALLEGATIONS
25.

Plaintiff hereby repleads and incorporates by reference each and every allegation

set forth above, and further states as follows:
26.

Plaintiff brings this class action, pursuant to Rule 23 of the Federal Rules of Civil

Procedure, individually and on behalf of all members of the following Class. The Class consists
of:
All natural persons located within the State of Maryland who sent e-mails
from a [e-mail] account e-mail address to an @gmail.com
account e-mail address the owner of which was also located within
Maryland from within the longest period of time allowed by statute before
the filing of this action up through and including the date of the judgment
in this case;
Excluded from the class are the following individuals and/or entities:
a.

Any and all federal, state, or local governments, including but not
limited to their department, agencies, divisions, bureaus, boards,
sections, groups, counsels, and/or subdivisions;

b.

Individuals, if any, who timely opt out of this proceeding using the
correct protocol for opting out;

c.

Current or former employees of Google;

f.

Individuals, if any, who have previously settled or compromised
claims(s) as identified herein for the class; and

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g.

Any currently sitting federal judge and/or person within the third
degree of consanguinity to any federal judge.
A.

Numerosity

27.

The Class is so numerous that joinder of all members is impracticable.

28.

The number of separate individuals who sent e-mails from a [e-mail]

account e-mail addresses to an @gmail.com account e-mail address from within the longest
period of time allowed by statute before the filing of this action is excess of 100 persons.
29.

Upon information and belief, the number of Gmail account holders in Maryland is

more than two hundred and fifty thousand users.. Correspondingly, Plaintiff alleges the numbers
for the Class are some multiple of that number.
B.
30.

Commonality

There are questions of law or fact common to the class. These questions include,

but are not limited to, the following:
a.

Whether or not Google intentionally intercepted, endeavored to intercept,
or procured any other person to intercept or endeavor to intercept
Plaintiff’s and Class Members’ electronic communications to @gmail.com
account recipients. Inclusive in this common question are the common
questions regarding the elements of Maryland statutes based upon the
statutory definitions:
•

Whether or not Google acted intentionally;

•

Whether or not Google acquired any content of Plaintiff’s and
Class members e-mail;

•

Whether or not Plaintiff’s and Class Members’ e-mails to the
@gmail.com account recipients were electronic communications;

•

Whether or not statutory damages against Google should be
assessed; and

•

Whether or not injunctive and declaratory relief against Google
should be issued.

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C.
31.

Typicality

Plaintiff’s claims are typical of the claims of the Class in that Plaintiff and the

Class sent e-mails to @gmail.com account holders, Google intercepted and acquired the e-mails’
contents, Google used or endeavored to use the contents of the Plaintiff’s and the Class
Members’ e-mails, the users of Gmail did not consent to the interception and uses made the basis
of this suit, neither Plaintiff nor the Class consented to Google’s interception and uses of content
made the basis of this suit, Plaintiff and the Class Members are entitled to declaratory relief,
statutory damages, and injunctive relief due to Google’s conduct..
D.
32.

Adequacy of Representation

Plaintiff will fairly and adequately protect the interests of the Class. Plaintiff’s

interests do not conflict with the interests of the Class members. Furthermore, Plaintiff has
retained competent counsel experienced in class action litigation. Plaintiff’s counsel will fairly
and adequately protect and represent the interests of the Class.
33.

Plaintiff asserts that pursuant to Fed. R. Civ. P. 23(b)(3), questions of law or fact

common to the Class Members predominate over any questions affecting only individual
members, and that a class action is superior to other available methods for fairly and efficiently
adjudicating the controversy.
CAUSE OF ACTION
VIOLATIONS OF MD. CODE ANN. §10-401 ET SEQ.
34.

Plaintiff hereby repleads and incorporates by reference each and every allegation

set forth above, and further states as follows:
35.

Google, as a corporation, is a “person” pursuant to Md. Code Ann. §10-101(5).

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36.

Throughout the entirety of the conduct upon which this suit is brought, Google’s

actions were/are willful.
37.

Upon information and belief, Google willfully intercepted, intercepts, or

endeavored or endeavors to intercept the electronic communications of Plaintiff’s e-mail and
Class members’ e-mails as follows:
•


Plaintiff’s and Class Members’ e-mails are electronic communications;

•

Google utilized(s) one or more devices composing of an electronic,
mechanical or other device or apparatus to intercept Plaintiff’s and Class
Members’ electronic communications;

•

Google’s intercepting devices are not a telephone or telegraph instrument,
are not telephone or telegraph equipment, are not a telephone or telegraph
facility, or are not any component thereof;

•

Google does not furnish the devices used to intercept the emails to Gmail
users and users do not use the devices for connection to the facilities;

•

The devices are not used by Google, operating as an electronic
communication service, in the ordinary course of its business as a provider
of an electronic communication service, are not a necessary incident of the
rendition of email services and do not functionally enhance providing
email service to Gmail account holders;

•

38.

Google acquired(s) the content of Plaintiff’s and Class Members’ e-mail;

Google’s interception of Plaintiff’s and Class Members’ electronic
communications for undisclosed and improper purposes delivering
targeted advertisements, for purposes beyond the Service of Gmail, in
violation of its user agreements, in violation of its contracts with third
parties, and in violation of its statements to users are not within the
ordinary course of business of a provider of an electronic communication
service.

Google intentionally used, uses, or endeavored or endeavors to use the contents of

Plaintiff’s and Class Members’ electronic communications knowing or having reason to know
that the information was obtained through the interception of the electronic communication in
violation of Md. Code Ann. §10-402, et seq.
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39.

Google’s interception and use of the contents of Plaintiff’s and Class Members’

electronic communications were not subject to any of the exceptions set out in Md. Code Ann.
§§ 10-402 and 10-407.
40.

Plaintiff did not consent to the interception or use of his electronic

communications and, upon information and belief, neither did any of the Class Members..
41.

As a result of Google’s violations of Md. Code Ann. §10-401 et seq. pursuant to

§10-410, Plaintiff and the Class are entitled to:
a.

Preliminary and permanent injunctive relief to halt Google’s violations;

b.

Appropriate declaratory relief;

c.

For Plaintiff and each Class members, the greater of $100 a day for each
day of violation or $1,000 whichever is higher;

d.

Punitive damages; and

e.

Reasonable attorneys’ fees and other litigation costs reasonably incurred.
JURY DEMANDED

Pursuant to the Seventh Amendment to the U.S. Constitution, Federal Rule of Civil
Procedure 38 and Local Rule 406, Plaintiff demands a jury on any issue triable of right by a jury.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff, on behalf of himself and all Class members, requests judgment
be entered against Defendant and that the Court grant the following:
1.

An order certifying the Class and appointing Plaintiff and his counsel to
represent the Class;

2.

Judgment against the Defendant for Plaintiff’s and the Class’ asserted
cause of action;

3.

Appropriate declaratory relief against Defendant;

4.

Preliminary and permanent injunctive relief against Defendant;
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5.

An award of statutory damages to the Plaintiff and the Class, for each, the
greater of $100 a day for each day of violation or $1,000, whichever is
higher;

6.

Punitive damages;

7.

An award of reasonable attorneys’ fees and other litigation costs
reasonably incurred; and

8.

Any and all other relief to which the Plaintiff and the Class may be
entitled.

This 9th day of July, 2012.
Respectfully submitted,
/s/ Kevin Gracie_________________
KEVIN GRACIE
ATTORNEY FOR THE PLAINTIFF
OF COUNSEL:
SLOCUMB LAW FIRM, LLC
777 Sixth Street, NW
Suite 200
Washington, D.C. 20001
Tel. No. [phone]
Fax No. [phone]
DEMAND FOR TRIAL BY JURY
The Plaintiffs demand a trial by struck jury of all of the issues in this case.
/s/ Kevin Gracie_________________
KEVIN GRACIE
ATTORNEY FOR THE PLAINTIFF
REQUEST FOR SERVICE OF PROCESS
The Plaintiff requests that the Summons and Complaint in this case be served upon
Defendant by Process Server, as follows:
Google, Inc.
C/O Registered Agent: CSC Lawyers Incorporating Service Company
11 East Chase Street
Baltimore, Maryland 21202
/s/ Kevin Gracie_________________
KEVIN GRACIE
ATTORNEY FOR THE PLAINTIFF
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