Perkins et al v. LinkedIn Corporation
Filing
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COMPLAINT (Class Action) against LinkedIn Corporation ( Filing fee $ 400, receipt number 0971-8008331.). Filed byPaul Perkins, Erin Eggers, Ann Brandwein, Pennie Sempell. (Attachments: # 1 Civil Cover Sheet)(Berger, Dorian) (Filed on 9/17/2013)
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RUSS AUGUST & KABAT
LmTy C. Russ, State Bar No. 82760
Donan S. Berger, State Bar No. 264424
Daniel P. Hipskind, State Bar !;fo. 266763
12424 Wilsnlre Boulevard, 12 Floor
Los Angeles, California 90025
Tel: (310) 826-7474
Fax: (310) 826-6991
Email: lruss@raklaw.com
Email: dberger@raklaw.com
Email: dhipskinCl@raklaw.com
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Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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email accounts, downloading email addresses that appear in the account, and then
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sending out multiple reminder emails ostensibly on behalf of the user advertising
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LinkedIn to non-members. Linkedln provides no functional way to stop multiple
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subsequent advertising emails from being sent.
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3.
When users sign up for LinkedIn they are required to provide an
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external email address as their username and to setup a new password for their
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Linkedln account. LinkedIn uses this information to hack into the user's external
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email account and extract email addresses. If a LinkedIn user leaves an external
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email account open, LinkedIn pretends to be that user and downloads the email
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addresses contained anywhere in that account to LinI::edln's servers. Linkedln is
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able to download these addresses without requesting the password for the external
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email accounts or obtaining users' consent.
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4.
As a part of its effort to acquire new users, Linkedln sends multiple
emails endorsing its products, services, and brand to potential new users. In an
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CLASS ACTION COMPLAINT
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effort to optimize the efficiency ofthis marketing strategy, Linkedln sends these
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"endorsement emails" to the list of email addresses obtained without its existing
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users' express consent and, to further enhance the effectiveness of this particular
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marketing campaign, these endorsement emails contain the name and likeness of
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those existing users from whom Linkedln surreptitiously obtained the list of email
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addresses.
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These "endorsement emails" are sent to email addresses taken from
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(last visited May
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20,2013). Linkedln states that these emails are worth ten dollars ($10) each
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because they carry an endorsement and the ability to send up to two reminder
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emails and are thus "better than an email or cold call".
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10.
Linkedln intentionally and knowingly created and developed this
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deceptive advertising scheme to improperly use the names, photographs,
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likenesses, and identities of Plaintiffs for the purpose of generating substantial
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profits for Linkedln. Linkedln's scheme was initiated without obtaining the
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consent of or compensating Plaintiffs or Class members for their part in promoting
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Linkedln's products and services. Plaintiffs and Class members each have a right
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of publicity under common law, which entitles them to be compensated for the use
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of their names, likenesses, and/or photographs. Linkedln has deprived Plaintiffs of
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such compensation.
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JURISDICTION AND VENUE
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This Court has jurisdiction over the subject matter of this action
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pursuant to 28 U.S.C. § 133l. This Court has personal jurisdiction over Linkedln
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because (a) a substantial portion ofthe wrongdoing alleged in this complaint took
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place in this state, and (b) Linkedln is authorized to do business here, has sufficient
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minimum contacts with this state, and/or otherwise intentionally avails itself ofthe
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markets in this State through the promotion, marketing, and sale of products and
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services in this State, to render the exercise of jurisdiction by this Court
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permissible under traditional notions of fair play and substantial justice. Under
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the Class Action Fairness Act of 2005 this Court has jurisdiction as the amount of
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damages sustained by the Class exceeds five million dollars.
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Venue is proper in this District under 28 U.S.C. §§ 1391(b)(1)-(2)
because Linkedln headquarters are located in the Northern District of California.
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CLASS ACTION COMPLAINT
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Venue is also proper under California Code of Civil Procedure § 17203 as this is a
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Court of competent jurisdiction.
PARTIES
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1.
Plaintiff Paul Perkins is a United States citizen and resident of New
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York City, New York in New York County. Mr. Perkins is the former Manager of
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International Advertising Sales for The New York Times. Mr. Perkins was, until
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20l3, a registered LinkedIn member. LinkedIn on one or more occasions during
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the class period gained access to Mr. Perkins' external email accounts without his
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authorization. Further, Linkedln on one or more occasions during the class period
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sent invitations to join LinkedIn to email addresses harvested from one or more of
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Mr. Perkins' external email accounts. Moreover, without Mr. Perkins' consent,
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additional spam emails were sent by LinkedIn to email addresses harvested from
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Linkedln harvests the email addresses that appear in the external
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email accounts of its members. These email accounts include Yahoo! Mail,
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Microsoft Mail, Google Gmail, and any number of other email service providers.
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CLASS ACTION COMPLAINT
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8.
When a new member signed up for Linkedln, Linkedln asked for that
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new user's external email address. This request is made without any warning of
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what the email address will be used for. A new Linkedln user was then asked to
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provide a password for his or her Linkedln account. Figure 1, below, shows the
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prompt on the Linkedln website requesting a user's external email address and a
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"new password."
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First Name, ILL_ _ _ _ _ _ _--1
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email address provided by the new user in the sign-up screen. If a LinkedIn user
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leaves an external email account open, LinkedIn pretends to be that user and
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downloads the email addresses contained anywhere in that account to LinkedIn
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servers. LinkedIn is able to download these addresses without requesting the
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password for the external email accounts or obtaining consent. If a LinkedIn user
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has logged out of all their email applications, LinkedIn requests the username and
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password of an external email account to ostensibly verify the identity of the user.
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However, LinkedIn then takes the password and login information provided and,
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without notice or consent, LinkedIn attempts to access the user's external email
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account to download email addresses from the user's external email account. If
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LinkedIn is able to break into the user's external email account using this
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information, LinkedIn downloads the email addresses of each and every person
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emailed by that user.
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LinkedIn's own Web site contains hundreds of complaints regarding
this practice.
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CLASS ACTION COMPLAINT
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It searched my email addresses for names and email addresses of
people on LinkedIn. It is deceptive, misleading and purposely vague.
Larry Bailey, April 10, 20l3. 1
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I'm not the only one being hacked by linkedin, but extremely upset at
the repercussions. one ofthe people on my contact list is mentally ill
and the last thing I wanted was to invite her to be my connection on
linked in. not to mention all the other people I don't want contact with
who remain on my contact list.
Robin Epstein, April 21, 2013. 2
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They are certainly NOT in my address book. They perhaps
tangentially related to my industry. Embarrassing.
Mike Reno, March 1,2013.3
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suggests that the user composed the content ofthe email him or herself. For
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example, the content of some messages sent by LinkedIn to the email addresses
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appropriated from users' external email accounts state, "I'd like to add you to my
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professional network." The email then includes the name of the LinkedIn user in a
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manner that people commonly sign a personal email or other electronic message.
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See Figure 7, below. Despite the appearance of the endorsement emails, the users
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do not compose the message, they do not consent to Linkedln sending multiple
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messages on their behalf, and they are not compensated for the use of their name
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or likeness in the advertising and promotion of Linkedln.
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33.
The only way a LinkedIn user can stop the two follow-up
endorsement emails (assuming the user found out about the initial emails in the
first place) from going out to the email addresses harvested from that user's
external email account is for the user to individually open up each invitation from
within his or her LinkedIn account (which LinkedIn has intentionally made
difficult to find within the user's account) and click a button that allows the user to
withdraw that single invitation. This process takes approximately 20 seconds to do
for each invitation. For a user who had two thousand invitations go out, it would
take roughly 11 hours of constant clicking to prevent reminder emails from going
out. For the user quoted above from the LinkedIn community message boards who
complained that Linkedln sent 800 invitations, it would take that user over four
hours of continuous clicking to ensure recipients did not receive the follow-up,
reminder emails. There is no functionality on the Linkedln website that allows a
user to withdraw all invitations at once. Furthermore, contacting Linkedln does
not lead to reminder emails being stopped. Weeks later, Linkedln will send an
email (well after the reminder emails have been sent) reading, "Thanks for your
email and I would first like to apologize for the delay in responding to your
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Linkedln Help Center, available at http://connmmity.linkedin.com/questionsI12199!stop:
linked-in-from-sending:automated-invites-to-a-1.html (last visited September 16, 2013).
18 Linkedln Help Center, available at http://community.linkedin.com/guestionsI13871/reminderinvitations-are-spamming-my-clients.html (last visited Septcmber 16,2013).
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CLASS ACTION COMPLAINT
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lllqmry. This is certainly not the customary wait time for a reply from Linkedln
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Customer Support. We have been experiencing higher than expected volumes, and
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your patience is greatly appreciated." The frustration and harm suffered by
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Linkedln users is described below:
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o:llcommunity.lin1(edin.coIl1lquestionsL:t6_66/Iinke~in
please-stop-hacking-and-spamming.htnll (last visited September 16,2013).
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invitations-are-spamming~my-clients.htmI?sort-newesj:
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CLASS ACTION COMPLAINT
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recommendations from existing members "it's that connection with the individual
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that I think leads to growth rate." Interview with Reid Hoffman, The CEO Show
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January 1, 2010, available at: http://troyanosgroup.comlinside-the-brand/the-ceo-
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show/interview-archives/reid-hoffman-transcript/ (last visited September 16,
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2013).
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Linkedln monetizes new members by selling services directly
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attributable to its membership size. For example, LinkedIn markets itselfto large
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corporations to purchase advertising or to search through LinkedIn profiles based
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on the number of Linkedln members. "LinkedIn Recruiter gives corporate
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businesses unprecedented access to Linkedin's database of over 40 million
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members. With one new member joining every second, Linkedln's membership
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grows larger and more valuable by the day, increasing the odds that recruiters will
a (last visited May 20, 2013)
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(emphasis added). Indeed, in selling Linkedln products and services to large
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corporations, LinkedIn's ability to make such sales is directly attributable to
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Linkedln recruiting new members. "With regard to recruitment, specifically by
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virtue of the size of the network, we were able to do something that's really never
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been possible before, and that's passive candidate recruiting at scale." Jeff Weiner,
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Interview on Worldmakers, June 24,2013 - Innovating From Within, available at
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ht1]J://www.linkedin.com/today/post/article/20 13 0624191834~_~515 3 523-
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innovating-from~within-linkedin-s-jeff-weiner-on-worldmakers
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September 16,2013). LinkedIn's endorsement emails have value to LinkedIn.
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Individualized personalized endorsement of Linkedln to Plaintiffs' friends and
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acquaintances has concrete provable value in the economy at large.
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CLASS ACTION COMPLAINT
(last visited
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Linkedln is able to save money by using appropriated email addresses
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and "endorsements" of its users. In its 2012 lO-K, Linkedln attributed this strategy
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to its profitability. "[O]ur member base has grown virally ... we have been able to
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build our brand with relatively low marketing costs." LinkedIn 2012 1O-K at 12.
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The email addresses that Linkedln takes from its users and uses to
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promote its service (using the name of the Linkedln user) have value to a user.
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Linkedln charges its own users ten dollars ($10) to send an email to another user
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they are not directly connected to. LinkedIn's InMail product is sold to members
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and directly states that because InMail contains "information about you" such as
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your name and profession, sending emails that utilize this information is "better
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than an email or cold call." Linked InMail Purchasing Page available at
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(last visited May
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visited May 20, 2013).
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Each new member that Linkedln attracts has monetary value. When
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LinkedIn attracts new members, it attempts to sell them premium accounts. These
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accounts are $39.95 per month (when purchasing a full year) and $49.95 per month
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when purchasing a month-to-month plan. Linkedln is not only advertising joining
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its network, but also directly selling a product with a price of $480 dollars a year to
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the email addresses harvested from users. Linkedln Premium Page, available at
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CLASS ACTlON COMPLAINT
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(last visited May 20, 20l3). In 2012, Premium Subscriptions accounted
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for $190 million dollars in revenue and grew by 81 % over the prior year.
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LinkedIn 2012 10-K Introduction.
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IfLinkedln was not able to send endorsement emails using email
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addresses appropriated without consent from its users, LinkedIn would be forced to
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pay for email addresses to advertise and promote its service.
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LinkedIn is growing its network by having its members endorse
Linkedln multiple times without their consent. This growth of LinkedIn's network
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is leading to increased direct revenue through sales of products directly to new
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members, and indirect revenue through sales to increasing numbers of recruiters
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91.
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Plaintiffs have a vested monetary interest in their appearance in
Plaintiffs each lost money to which they were entitled in the form of
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compensation for the use of their images and names, and in which they had a
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vested interest, by virtue of LinkedIn's conduct. They are entitled to restitution of
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such sums.
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THIRD CAUSE OF ACTION
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(Stored Communications Act)
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93.
Plaintiffs incorporate each of the foregoing allegations as if fully set
forth herein.
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The ECPA broadly defines an "electronic communication" as "any
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transfer of signs, signals, writing, images, sounds, data, or intelligence of any
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nature transmitted in whole or in part by a wire, radio, electromagnetic,
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photoelectronic or photooptical system that affects interstate or foreign commerce.
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CLASS ACTION COMPLAINT
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... " 18 U.S.C. § 2510(12). The Stored Communications Act (the "SCA")
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incorporates this defmition.
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The SCA mandates, among other things, that it is unlawful for a
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person to obtain access to stored communications on another's computer system
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without authorization. 18 U.S.C. § 270l.
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96.
Congress expressly included provisions in the SCA to address this
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issue so as to prevent "unauthorized persons deliberately gaining access to, and
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sometimes tampering with, electronic or wire communications that are not
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intended to be available to the public." Senate Report No. 99-541, S. REP. 99-541,
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35, 1986 u.S.C.C.A.N. 3555,3589.
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Linkedln has violated 18 U.S.C. § 2701(a)(l) because it intentionally
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accessed members' email communications without authorization and obtained,
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102. LinkedIn violated 18 U.S.C. § 2511 by intentionally acquiring and/or
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intercepting, by device or otherwise, Plaintiffs' and Class Members' electronic
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communications, without knowledge consent, or authorizations. For example, by
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hacking into a LinkedIn member's external email account, LinkedIn accesses that
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member's external email account without his or her knowledge or consent and
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copies information contained in that member's email account and stores it on
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Linkedln's servers.
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103. LinkedIn unlawfully accessed and used, and voluntarily disclosed, the
contents of the intercepted communications to enhance their profitability.
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l04. The ECPA provides a civil cause of action to "any person whose wire,
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oral, or electronic communication is intercepted, disclosed or intentionally used" in
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violation of the ECPA.
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CLASS ACTION COMPLAINT
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105. Linkedln is liable directly and/or vicariously for this cause of action.
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Plaintiffs therefore seek a remedy as provided by 18 U.S.C. § 2520, including such
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preliminary and other equitable or declaratory relief as may be appropriate,
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damages consistent with subsection (c) of that section to be proven at trial, punitive
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damages to be proven at trial, and all attorney's fees and other litigation costs
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reasonably incurred.
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106. Plaintiffs and Class Members have additionally suffered loss by
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reason of these violations, including, without limitation, violation of the right of
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pnvacy.
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107. Plaintiffs and the Class, pursuant to 18 U.S.C. § 2520, are entitled to
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preliminary, equitable, and declaratory relief, in addition to statutory damages of
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the greater of $10,000 or $100 a day for each day of violation, actual and punitive
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damages, reasonable attorneys' fees, and Linkedln's profits obtained from the
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above-described violations. Unless restrained and enjoined, LinkedIn will
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continue to commit such acts. Plaintiffs' remedy at law is not adequate to
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compensate it for these inflicted and threatened injuries, entitling Plaintiffs to
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remedies including injunctive relief as provided by 18 U.S.C. § 2510.
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