DiTirro v. Facebook, Inc.

Filing 7

AMENDED COMPLAINT against All Defendants. Filed byAnthony DiTirro. (Attachments: # 1 Amended Summons)(Friedman, Todd) (Filed on 1/15/2014)

1 ANTHONY J. ORSHANSKY, Cal. Bar No.199364
[e-mail]

2 JUSTIN KACHADOORIAN, Cal. Bar No. 260356
[e-mail]

3 COUNSELONE, P.C.
9301 Wilshire Boulevard, Suite 650

4 Beverly Hills, California 90210
Telephone: [phone]

5 Facsimile: [phone]
6 TODD M. FRIEDMAN, Cal. Bar No. 216752
[e-mail]

7 NICHOLAS J. BONTRAGER, Cal. Bar No. 252114
8 [e-mail]
9
10
11
12

LAW OFFICES OF TODD M. FRIEDMAN, P.C.
369 S. Doheny Drive, Suite 415
Beverly Hills, California 90211
Telephone: [phone]
Facsimile: [phone]
[Other Counsel on signature page]
Attorneys for Anthony Ditirro, on behalf of themselves and
others similarly situated

13
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

14
15

16 ANTHONY DITIRRO, KATYA BRESLER,

) Case No. 5:14-cv-00132-PSG
)
FIRST AMENDED CLASS ACTION
)
COMPLAINT FOR:
)
)
Plaintiffs,
1. VIOLATION OF CALIFORNIA CIVIL
)
CODE § 3344
)
v.
2. MISAPPROPRIATION OF LIKENESS
)
3. FALSE LIGHT
)
FACEBOOK, INC.,
4. VIOLATION OF BUSINESS AND
PROFESSIONS CODE § 17200 et seq.
)
5. FALSE ADVERTISING, CAL. BUS. &
)
Defendant.
PROF. CODE § 17500
)
6. VIOLATIONS OF THE CONSUMER
)
LEGAL REMEDIES ACT (CAL.
)
CIVIL CODE §§ 1750 et seq.)
)
7. NEGLIGENCE
)
8. BREACH OF CONTRACT
)
9. BREACH OF COVENANT OF
)
GOOD FAITH AND FAIR DEALING
)
10. RESTITUTION BASED ON QUASICONTRACT / UNJUST
)
ENRICHMENT
)
______________________________________ DEMAND FOR JURY TRIAL

AND MICHELLE SHUMATE, on behalf of
17
themselves and all others similarly situated ,

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fi

1
FIRST AMENDED CLASS ACTION COMPLAINT

INTRODUCTION

1
2

1.

ANTHONY DITIRRO, KATYA BRESLER, AND MICHELLE SHUMATE

3 (“PLAINTIFFS”) brings this class action for damages, injunctive relief, and any other available
4 legal or equitable remedies, resulting from the illegal actions of FACEBOOK, INC.
5 (“DEFENDANT”) and its related entities, subsidiaries and agents, in unlawfully using its
6 customers’ likenesses and Facebook profiles to create a false impression that its customers are
7 promoting a particular company or product without said customer’s knowledge or consent.
8 PLAINTIFFS allege as follows upon personal knowledge as to themselves and their own acts and
9 experiences, and, as to all other matters, upon information and belief, including investigation
10 conducted by their attorneys.
JURISDICTION AND VENUE

11
12

2.

Jurisdiction is proper under 28 U.S.C. § 1332(d)(2) because the claims of the

13 individual class members, when aggregated among a proposed class numbering in the millions,
14 exceeds the $5,000,000 threshold for federal court jurisdiction. Further, PLAINTIFFS allege a
15 national class, which will result in at least one class member belonging to a different state than that
16 of DEFENDANT. Therefore, both elements of diversity jurisdiction under the Class Action
17 Fairness Act of 2005 (“CAFA”) are present, and this Court has jurisdiction.
18

3.

Venue is proper in the United States District Court for the Northern District of

19 California pursuant to 28 U.S.C. § 1391(b) (1) and 1441(a) because DEFENDANT is
20 headquartered in San Mateo.
PARTIES

21
22

4.

PLAINTIFF DITIRRO is, and at all times mentioned herein was, an individual

23 citizen and resident of the State of Colorado.
24

5.

PLAINTIFF BRESLER is, and at all times mentioned herein was, an individual

25 citizen and resident of the State of California, County of Ventura.
26

6.

PLAINTIFF SHUMATE is, and at all times mentioned herein was, an individual

27 citizen and resident of the State of California, County of Yolo.
28
2
CLASS ACTION COMPLAINT

1

7.

PLAINTIFFS are informed and believe, and thereon allege, that DEFENDANT is,

2 and at all times mentioned herein was, a corporation, with its principal place of business in the
3 City of Menlo Park, State of California.
4

8.

PLAINTIFFS are informed and believe, and thereon allege, that at all times

5 relevant, and DEFENDANT conducted business in the State of California.
FACTUAL ALLEGATIONS

6
7

9.

Founded in 2004, DEFENDANT is the world’s largest social media networking

8 website with over a billion active users as of September of 2012.
9

10.

Users must register to be able to use the website, after which they have the option

10 to create a personal profile, add other users as “Facebook Friends,” exchange messages and
11 receive automatic updates about their Facebook Friends when one of them updates his or her
12 profile.
13

11.

A user’s personal profile can consist of digital photographs, a wall for other users

14 to write on, a list of interests, an educational history, as well as other personal information.
15

12.

Users can also create or join interest groups and “Like” pages, many of which are

16 maintained by well-known products and companies as a means of advertising.
17

13.

The Facebook “Like Button” is a very popular feature of DEFENDANT’S website,

18 allowing users to express their appreciation of content such as other user’s Facebook status,
19 comments, and posted photos.
20

14.

Facebook users also have the ability to utilize their “Like Button” to endorse

21 various companies’ products, services and advertisements.
22

15.

A single click on a like button by a particular Facebook user will advertise to

23 thousands of others that a particular user backs or likes a particular company’s product or service;
24 a gigantic source of advertising.
25

16.

DEFENDANT will routinely post a sponsored company’s advertisement on a

26 user’s timeline, indicating to said user that one of his or her Facebook friends “Likes” that
27 particular company, giving the impression of endorsement.
28
3
CLASS ACTION COMPLAINT

1

17.

According to a recent Internet article, The Facebook “Like Button” is seen more

2 than 22 billion times per day and is embedded in over 7.5 million websites.
3

18.

PLAINTIFFS DITIRRO has been a registered Facebook user since 2009. Before

4 signing up for Facebook and continually thereafter, PLAINTIFFS read Facebook’s terms and
5 conditions and other information provided by DEFENDANT regarding privacy and the
6 dissemination and use of personal information and content posted on Facebook, and he has
7 continually followed statements in the media by DEFENDANT’S representatives and officials
8 regarding these issues.
9

19.

PLAINTIFFS BRESLER has been a registered Facebook user since 2008. Before

10 signing up for Facebook and continually thereafter, PLAINTIFFS read Facebook’s terms and
11 conditions and other information provided by DEFENDANT regarding privacy and the
12 dissemination and use of personal information and content posted on Facebook, and he has
13 continually followed statements in the media by DEFENDANT’S representatives and officials
14 regarding these issues.
15

20.

PLAINTIFFS SHUMATE has been a registered Facebook user since 2008. Before

16 signing up for Facebook and continually thereafter, PLAINTIFFS read Facebook’s terms and
17 conditions and other information provided by DEFENDANT regarding privacy and the
18 dissemination and use of personal information and content posted on Facebook, and he has
19 continually followed statements in the media by DEFENDANT’S representatives and officials
20 regarding these issues.
21

21.

PLAINTIFFS and other Class members (defined below) understood that by signing

22 up for Facebook they would own and control their personal information and content. Indeed
23 DEFENDANT not only permitted but required PLAINTIFFS and other Class members to provide
24 accurate and truthful information. For PLAINTIFFS and other Class members, the value of
25 DEFENDANT’S service consisted in the conveyance truthfully and accurately of this information.
26

22.

Furthermore, PLAINTIFFS and other Class members understood not only from the

27 expressed purpose of Facebook (i.e., to convey correct and truthful information), but also from the
28 terms and conditions that DEFENDANT would use information about PLAINTIFFS and Class
4
CLASS ACTION COMPLAINT

1 members, subject to their privacy and application settings, that they actually posted and that
2 advertising would use the information and content they posted or provided, not information they
3 did not post and that was inaccurate or untrue.
4

23.

Thus PLAINTIFFS, Class members, and reasonable consumers would understand

5 from DEFENDANT’S mission and policies that it would not disseminate false, incorrect, or
6 untruthful information, and specifically would not falsely attribute sponsorship, endorsement,
7 preference, or approval in the form of “Likes” to them when they had not in fact “Liked” a
8 product, service, or company.
9

24.

On or about November of 2013, PLAINTIFF DITIRRO received notification from

10 one of his Facebook friends that PLAINTIFFS was featured on Facebook, “Liking” USA TODAY
11 newspaper in a Facebook sponsored advertisement. (Attached as Exhibit “A” to this Complaint is
12 a screenshot of Facebook showing PLAINTIFF DITIRRO “liking” USA TODAY).
13

25.

Although PLAINTIFF DITIRRO has nothing negative to say about USA TODAY

14 newspapers, PLAINTIFF DITIRRO is not an avid reader of USA TODAY, nor does PLAINTIFF
15 DITIRRO endorse the newspaper.
16

26.

PLAINTIFF DITIRRO has never visited USA TODAY’S website.

17

27.

PLAINTIFF DITIRRO never clicked his “Like Button” on USA TODAY’s

18 website, USA TODAY’S Facebook page, nor any Facebook content or advertisement featuring
19 USA TODAY.
20

28.

DEFENDANT knowingly used PLAINTIFF DITIRRO’S likeness and Facebook

21 profile to advertise to the general public that PLAINTIFF DITIRRO endorsed USA TODAY
22 without PLAINTIFF DITIRRO’S permission.
23

29.

PLAINTIFF DITIRRO was unaware that DEFENDANT had utilized PLAINTIFF

24 DITIRRO’S Facebook profile to advertise for USA TODAY until PLAINTIFF DITIRRO was
25 notified of the same by one of his Facebook Friends.
26

30.

DEFENDANT never contacted PLAINTIFF DITIRRO to ask permission to use

27 PLAINTIFF DITIRRO’S Facebook profile to sponsor or “like” USA TODAY.
28
5
CLASS ACTION COMPLAINT

1

31.

DEFENDANT intentionally manipulated PLAINTIFF DITIRRO’S Facebook

2 profile to give the general public, and specifically PLAINTIFF DITIRRO’S Facebook friends, the
3 false impression that PLAINTIFF DITIRRO liked or endorsed USA TODAY.
4

32.

On or about January 13, 2014 PLAINTIFF BRESLER received notification that

5 PLAINTIFF BRESLER was featured on Facebook, “Liking” DURACELL in a Facebook
6 sponsored advertisement. (Attached as Exhibit “B” to this Complaint is a screenshot of Facebook
7 showing PLAINTIFF BRESLER “liking” DURACELL).
8

33.

Although PLAINTIFF BRESLER has nothing negative to say about DURACELL,

9 PLAINTIFF BRESLER does not endorse this company.
10

34.

PLAINTIFF BRESLER never clicked her “Like Button” on DURACELL’S

11 website, DURACELL’S Facebook page, nor any Facebook content or advertisement featuring
12 DURACELL.
13

35.

DEFENDANT knowingly used PLAINTIFF BRESLER’S likeness and Facebook

14 profile to advertise to the general public that PLAINTIFF BRESLER endorsed DURACELL
15 without PLAINTIFF BRESLER’S permission.
16

36.

PLAINTIFF BRESLER was unaware that DEFENDANT had utilized PLAINTIFF

17 BRESLER’S Facebook profile to advertise for DURACELL until PLAINTIFF BRESLER was
18 notified of the same via the Facebook posting.
19

37.

DEFENDANT never contacted PLAINTIFF BRESLER to ask permission to use

20 PLAINTIFF BRESLER’S Facebook profile to sponsor or “like” DURACELL.
21

38.

DEFENDANT intentionally manipulated PLAINTIFF BRESLER’S Facebook

22 profile to give the general public, and specifically PLAINTIFF BRESLER’S Facebook friends, the
23 false impression that PLAINTIFF BRESLER liked or endorsed DURACELL.
24

39.

In or around January 2014, PLAINTIFF SHUMATE received notification that

25 PLAINTIFF SHUMATE was featured on Facebook, “Liking” KOHL’S Facebook Page.
26 (Attached as Exhibit “C” to this Complaint is a screenshot of Facebook showing PLAINTIFF
27 SHUMATE “liking” KOHL’S Facebook Page).
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6
CLASS ACTION COMPLAINT

1

40.

Although PLAINTIFF SHUMATE has nothing negative to say about KOHL’S,

2 PLAINTIFF SHUMATE does not endorse this company.
3

41.

PLAINTIFF SHUMATE never clicked her “Like Button” on KOHL’S website,

4 KOHL’S Facebook page, nor any Facebook content or advertisement featuring KOHL’S.
5

42.

DEFENDANT knowingly used PLAINTIFF SHUMATE likeness and Facebook

6 profile to advertise to the general public that PLAINTIFF SHUMATE endorsed KOHL’S without
7 PLAINTIFF SHUMATE’S permission.
8

43.

PLAINTIFF SHUMATE was unaware that DEFENDANT had utilized

9 PLAINTIFF SHUMATE’S Facebook profile to advertise for KOHL’S until PLAINTIFF
10 SHUMATE was notified of the same via her Facebook profile.
11

44.

DEFENDANT never contacted PLAINTIFF SHUMATE to ask permission to use

12 PLAINTIFF SHUMATE’S Facebook profile to sponsor or “like” KOHL’S.
13

45.

DEFENDANT intentionally manipulated PLAINTIFF SHUMATE’S Facebook

14 profile to give the general public, and specifically PLAINTIFF SHUMATE’S Facebook friends,
15 the false impression that PLAINTIFF SHUMATE liked or endorsed KOHL’S.
16

46.

PLAINTIFFS and the members of the Class have all suffered irreparable harm and

17 damages as a result of DEFENDANT’s unlawful and wrongful conduct heretofore described.
CLASS ACTION ALLEGATIONS

18
19

47.

PLAINTIFFS bring this action on behalf of themselves and on behalf of all others

20 similarly situated (“the Class”).
21

PLAINTIFFS represent, and are members of, the Class, consisting of:

22

All persons within the United States whose Facebook profile was manipulated
by DEFENDANT to give the impression to other Facebook users, including
but not limited to their friends, family and acquaintances, that said person
liked, endorsed and/or used a product/and or company that advertised on
Facebook without the consent of said person to use their likeness and/or
private data.

23
24
25
26

48.

DEFENDANT and its employees or agents are excluded from the Class.

27 PLAINTIFFS do not know the number of members in the Class, but believes the Class members
28
7
CLASS ACTION COMPLAINT

1 number in millions, if not more. Thus, this matter should be certified as a Class action to assist in
2 the expeditious litigation of this matter.
3

49.

PLAINTIFFS reserve the right to amend or modify the class description with

4 greater particularity or further division into subclasses or limitation to particular issues.
5

50.

The joinder of the Class members is impractical and the disposition of their claims

6 in the Class action will provide substantial benefits both to the parties and to the court.
7 DEFENDANT has more than one hundred million current subscribers. The Class can be identified
8 through DEFENDANT’s records or DEFENDANT’s agents’ records.
9

51.

There is a well-defined community of interest in the questions of law and fact

10 involved affecting the parties to be represented. The questions of law and fact to the Class
11 predominate over questions which may affect individual Class members, including inter alia:
12

a. Whether DEFENDANT violated California Civil Code § 3344 by representing

13

that Class members “liked” products, companies, and/or services when they had

14

not in fact done so;

15

b. Whether DEFENDANT misappropriated Class members’ likenesses by

16

representing in Facebook advertisements that Class members “liked” products,

17

services and/or companies when they had not in fact done so;

18

c. Whether DEFENDANT portrayed members of the Class in a false light by

19

inaccurately representing their preferences and endorsements for particular

20

products and companies;

21
22
23
24

d. Whether DEFENDANT’S conduct and omissions as heretofore alleged are
false, misleading, or reasonably likely to deceive its customers;
e. Whether DEFENDANT failed to disclose material facts relating to the character
and quality of its advertising practices;

25

f. Whether California law applies to the proposed Class;

26

g. Whether DEFENDANT’S conducted described herein constitutes a breach of

27
28

contract;
h. Whether DEFENDANT’S conduct described herein was negligent;
8
CLASS ACTION COMPLAINT

1

i. Whether DEFENDANT owed a duty to customers to exercise reasonable care

2

to accurately represent the preferences and/or endorsements of members of the

3

Class;

4

j. Whether DEFENDANT breached its duty to exercise reasonable care in failing

5

to represent accurately the preferences and/or endorsements of Class members

6

for particular products, services, and companies;

7

k. Whether DEFENDANT’S conduct described herein constitutes a breach of the

8

covenant of good faith and fair dealing;

9

l. Whether DEFENDANT was unjustly enriched as a result of the conduct alleged

10

herein;

11

m. Whether PLAINTIFFS and the members of the Class were damaged by

12

DEFENDANT’S conduct, and the extent of damages;

13

n. Whether DEFENDANT has engaged in unlawful, unfair, or fraudulent business

14

practices in violation of Cal. Bus. & Prof. Code § 17200 et seq.; and

15

o. Whether DEFENDANT should be enjoined from engaging in such conduct in

16
17

the future.
52.

As a person whose personal information and likeness was compromised as a result

18 of DEFENDANT’S wrongful conduct as herein alleged, PLAINTIFFS are asserting claims that
19 are typical of the Class. PLAINTIFFS will fairly and adequately represent and protect the interests
20 of the Class in that PLAINTIFFS have no interests antagonistic to any member of the Class.
21

53.

PLAINTIFFS and the members of the Class have all suffered irreparable harm as a

22 result of the DEFENDANT’S unlawful and wrongful conduct. Absent a class action, the Class
23 will continue to face the potential for irreparable harm. In addition, these violations of law will be
24 allowed to proceed without remedy and DEFENDANT will likely continue such illegal conduct.
25 Because of the size of the individual Class member’s claims, few, if any, Class members could
26 afford to seek legal redress for the wrongs complained of herein.
27

54.

PLAINTIFFS have retained counsel experienced in handling class action lawsuits.

28
9
CLASS ACTION COMPLAINT

1

55.

A class action is a superior method for the fair and efficient adjudication of this

2 controversy. The interest of Class members in individually controlling the prosecution of separate
3 claims against DEFENDANT is small. Management of these claims is likely to present
4 significantly fewer difficulties than those presented in many class claims. Litigating this case as a
5 class action will reduce the possibility of repetitious litigation relating to DEFENDANT’S
6 conduct.
7

56.

DEFENDANT has acted on grounds generally applicable to the Class, thereby

8 making appropriate final injunctive relief and corresponding declaratory relief with respect to the
9 Class as a whole.
10

FIRST CAUSE OF ACTION

11

(UNAUTHORIZED MISAPPROPRIATION AND COMMERCIAL USE OF NAME,

12

VOICE AND PHOTOGRAPHS – CIV. CODE § 3344)

13

57.

PLAINTIFFS re-allege the foregoing paragraphs of this complaint and incorporate

14 the same by reference as though set forth at length herein.
15

58.

Continuing through the present, DEFENDANT knowingly used and is continuing

16 to use PLAINTIFFS’ and other Class members’ name and Facebook photos for DEFENDANT’S
17 advantage, all without their prior consent.
18

59.

As a direct and proximate result of said acts by DEFENDANT, PLAINTIFFS and

19 other Class members have suffered damages, in an amount equal to the greater of seven hundred
20 fifty dollars ($750) or the actual damages suffered by them as a result of the unauthorized use, and
21 any profits from the unauthorized use that are attributable to the use and are not taken into account
22 in computing the actual damages.
23

60.

The Facebook advertisements depicting PLAINTIFFS’ likeness and the likeness of

24 other Class members were not authorized to be used in any fashion by DEFENDANT because
25 they were obtained without their consent; moreover, said advertisements were at no time to be
26 distributed to the public.
27

61.

In doing the acts alleged herein, DEFENDANT by and through its agents and

28 representatives acted with negligence, oppression, fraud, and malice, engaging in despicable
10
CLASS ACTION COMPLAINT

1 conduct carried on by DEFENDANT with a willful and conscious disregard of PLAINTIFFS’ and
2 other Class members’ rights and that has subjected PLAINTIFFS and other putative Class
3 members to cruel and unjust hardship and humiliation in conscious disregard of their rights, in the
4 process making intentional misrepresentations, engaging in deceit and concealing material facts
5 known to DEFENDANT with the intention on the part of DEFENDANT to thereby deprive
6 PLAINTIFFS and Class members of their property rights, legal rights and otherwise to cause them
7 injury, as described herein above.
8

62.

Under authority of California Civil Code § 3344, PLAINTIFFS and other Class

9 members, upon prevailing upon this claim, shall be entitled to an award of their reasonable
10 attorneys’ fees and costs of suit incurred herein, as against DEFENDANT, as well as actual
11 statutory damages, profits gained and punitive damages.
12

63.

DEFENDANT will continue using the misappropriated likenesses of PLAINTIFFS

13 and other Class members for purposes of promoting DEFENDANT’S websites, online presence,
14 advertising clients of DEFENDANT, and for their overall advantage, including, but not limited to
15 commercial gain and profit. Unless and until enjoined and restrained by order of this Court,
16 DEFENDANT’S continued use of PLAINTIFFS’ and other Class members’ images and likeness
17 will cause PLAINTIFFS and other Class member great and irreparable injury in that the
18 impairment of their reputation and standing will continue to be threatened.
19

64.

PLAINTIFFS and other Class members have no adequate remedy at law for the

20 injuries being suffered in that a judgment for monetary damages alone will not end the invasion of
21 their right of privacy or suffice to fully remedy their injuries.
22

SECOND CAUSE OF ACTION

23

(INVASION OF COMMON LAW RIGHT OF PRIVACY – UNAUTHORIZED

24

MISAPPROPRIATION OF IMAGE)

25

65.

PLAINTIFFS re-allege the foregoing paragraphs of this complaint and incorporate

26 the same by reference as though set forth at length herein.
27

66.

By virtue of DEFENDANT’S wrongdoing and the facts alleged herein above,

28 DEFENDANT, separate and apart from, any statutory violation of California Civil Code § 3344,
11
CLASS ACTION COMPLAINT

1 committed an invasion of PLAINTIFFS’ and other Class members’ right of privacy as recognized
2 by the common law of the State of California, and as supported and protected by the Constitution
3 of the State of California.
4

67.

DEFENDANT, without PLAINTIFFS’ and other Class members’ consent, invaded

5 PLAINTIFFS’ and Class members’ right to privacy by unlawfully representing to the general
6 population that they endorsed DEFENDANT’S advertising via the internet, as alleged above.
7

68.

DEFENDANT invaded PLAINTIFFS’ and Class members’ right to privacy by

8 unlawfully using PLAINTIFFS’ Facebook profiles to promote advertising, of which it knew
9 DEFENDANT had not obtained a valid written consent from PLAINTIFFS or other Class
10 members.
11

69.

The appropriation was unauthorized and without PLAINTIFFS’ consent or the

12 consent of Class members.
13

70.

DEFENDANT’S conduct involved the appropriation of PLAINTIFFS’ image and

14 likeness, and the image and likeness of other Class members. In doing the acts alleged herein
15 DEFENDANT, without PLAINTIFFS’ or Class members’ consent, invaded PLAINTIFFS’ and
16 Class members’ right to privacy by unlawfully publishing their likenesses.
17

71.

The appropriation was for DEFENDANT’S advantage in that DEFENDANT used

18 PLAINTIFFS’ and Class members’ Facebook profiles and likenesses to promote and market their
19 online presence, website, and overall marketability, as well as that of DEFENDANT’S advertising
20 customers.
21

72.

Any public interest to be served by DEFENDANT’S action could be done without

22 the use of PLAINTIFFS’ and Class members’ likenesses.
23

73.

As a proximate result of the above misappropriation of likenesses, PLAINTIFFS

24 and Class members were exposed to loss of reputation humiliation, embarrassment, hurt feeling,
25 mental anguish, and suffering, all to their general damage in an amount according to proof.
26

74.

In making the misappropriation described above, DEFENDANT acted with

27 negligence, oppression, fraud, and malice, engaging in despicable conduct carried on by
28 DEFENDANT with a willful and conscious disregard of PLAINTIFFS’ rights and the rights of
12
CLASS ACTION COMPLAINT

1 other Class members and have subjected them to cruel and unjust hardship and humiliation in
2 conscious disregard of their rights, engaging in deceit and concealing material facts known to
3 DEFENDANT with the intention on the part of DEFENDANT to thereby deprive PLAINTIFFS
4 and Class members of their property rights, legal rights and otherwise to cause PLAINTIFFS and
5 Class members injury, as described herein above. In doing the acts alleged herein, DEFENDANT,
6 without PLAINTIFFS’ or Class members’ consent, invaded their right to privacy by unlawfully
7 publishing their Facebook profiles and likenesses.
8

75.

PLAINTIFFS believe that DEFENDANT will to continue disclosing the above

9 information. Unless and until enjoined and restrained by order of this court, DEFENDANT’S
10 continued publication will cause PLAINTIFFS and Class members great and irreparable injury.
11 PLAINTIFFS have no adequate remedy at law for the injuries being suffered in that a judgment
12 for monetary damages will not end the invasion of PLAINTIFFS’ or Class members’ privacy.
13

76.

As a direct and proximate result of DEFENDANT’S negligent and/or reckless

14 conduct, PLAINTIFFS and Class members have been damaged in an amount to be proven at trial.
15

THIRD CAUSE OF ACTION

16

(INVASION OF COMMON LAW RIGHT OF PRIVACY - PUBLICLY PLACING

17

PERSON IN FALSE LIGHT IN THE PUBLIC EYE)

18

77.

PLAINTIFFS re-allege the foregoing paragraphs of this complaint and incorporate

19 the same by reference as though set forth at length herein.
20

78.

DEFENDANT, without PLAINTIFFS’ consent and the consent of other Class

21 members, invaded PLAINTIFFS’ and other Class members’ right of privacy by posting on
22 Facebook advertisements of companies, products and/or services which contained PLAINTIFFS’
23 and Class members’ misappropriated likenesses, purporting to promote said companies.
24

79.

PLAINTIFFS and other Class members are portrayed in these advertisements

25 promoting said companies/products/services by “Liking” them with their Facebook profiles. (See
26 Exhibit “A”).
27

80.

Such disclosure by DEFENDANT created publicity in the sense of a public

28 disclosure to a large number of people in that this was published on the Internet to thousands,
13
CLASS ACTION COMPLAINT

1 perhaps millions of other Facebook users.
2

81.

The publicity created by DEFENDANT placed PLAINTIFFS and Class members

3 in a false light in the public eye in that DEFENDANT’S advertisements suggest that PLAINTIFFS
4 and Class members like, promote and/or use the companies/products/services depicted in said
5 advertisements.
6

82.

The publicity created by DEFENDANT was offensive and objectionable to

7 PLAINTIFFS and Class members, and to a reasonable person of ordinary sensibilities.
8

83.

The publicity created by DEFENDANT was done with negligence and/or malice

9 in that it was made either with knowledge of its falsity or in reckless disregard of its truth in that
10 the advertisements depicting PLAINTIFFS and Class members were calculated falsehoods
11 because DEFENDANT knew that PLAINTIFFS and Class members did not in fact like, promote
12 and/or use the companies/products/services depicted in said advertisements.
13

84.

As a proximate result of the above-mentioned disclosure and depictions,

14 PLAINTIFFS and Class members suffered general damages in an amount according to proof.
15

85.

In making the disclosure and depiction described above, DEFENDANT was guilty

16 of negligence, oppression, fraud, or malice, in that DEFENDANT made the disclosure with
17 negligence or with a willful and conscious disregard of PLAINTIFFS’ and Class members’
18 property rights. PLAINTIFFS therefore seek an award of damages, including punitive damages,
19 in an amount to be proven at trial, on behalf of themselves and the Class.
20

86.

PLAINTIFFS believe that DEFENDANT will to continue disclosing the above

21 information. Unless and until enjoined and restrained by order of this court, DEFENDANT’S
22 continued publication will cause PLAINTIFFS and Class members great and irreparable injury.
23 PLAINTIFFS have no adequate remedy at law for the injuries being suffered in that a judgment
24 for monetary damages will not end the invasion of PLAINTIFFS’ or Class members’ privacy.
25
26 ///
27 ///
28 ///
14
CLASS ACTION COMPLAINT

1

FOURTH CAUSE OF ACTION

2

UNLAWFUL, UNFAIR, AND FRAUDULENT BUSINESS PRACTICES UNDER

3

CALIFORNIA BUSINESS AND PROFESSIONS CODE § 17200, et seq.

4

87.

PLAINTIFFS re-allege the foregoing paragraphs of this complaint and incorporate

5 the same by reference as though set forth at length herein.
6

88.

DEFENDANT’S acts, practices, and omissions detailed above constitute unlawful,

7 unfair and/or fraudulent business practices and acts, within the meaning of California Business &
8 Professions Code § 17200 et seq.
9

89.

DEFENDANT’S acts, practices, and omissions detailed above constitute fraudulent

10 practices in that they are likely to deceive and did deceive reasonable consumers. PLAINTIFFS
11 and each member of the Class were fraudulently induced to register with Facebook and/or
12 continue using Facebook and provide content and information based on their understanding that
13 DEFENDANT would not fabricate false information about them and broadcast it to their Friends
14 and others.
15

90.

DEFENDANT’S acts, practices, and omissions detailed above, constitute unlawful

16 practices and/or acts in that they violate Cal. Civ. Code § 3344, as well as the common law right to
17 privacy by, inter alia, systematically misappropriating the likeness of PLAINTIFFS and Class
18 members and portraying them in a false light.
19

91.

DEFENDANT has committed all of the aforesaid acts of infringement deliberately,

20 willfully, maliciously and oppressively, without regard to PLAINTIFFS’ or Class members’ legal,
21 contractual, and exclusive proprietary rights.
22

92.

The potential harm that consumers will be deceived into registering for and using

23 Facebook and be the subject of DEFENDANT’S false and misleading representations is
24 substantially injurious to consumers and violates public policy, and is immoral, unethical,
25 oppressive, and unscrupulous, because the gravity of the conduct outweighs any alleged benefits
26 attributable to such conduct.
27

93.

As a direct and proximate result of DEFENDANT’S unlawful, unfair and

28 fraudulent business practices as alleged herein, PLAINTIFFS have suffered injury in fact and lost
15
CLASS ACTION COMPLAINT

1 money or property, including but not limited to loss to their reputations, the misappropriation of
2 their likenesses (which has monetary value), the lessened value of DEFENDANT’S service to
3 them, and the diminishment in value of their personal information.
4

94.

Pursuant to California Business & Professions Code § 17203, PLAINTIFFS seeks

5 an order of this Court prohibiting DEFENDANT from engaging in the unlawful, unfair, or
6 fraudulent business acts or practices set forth in this Complaint and/or ordering DEFENDANT
7 perform its obligations under the law and the cancellation of any illegal obligations. PLAINTIFFS
8 additionally requests an order from the Court requiring that DEFENDANT provide complete
9 equitable relief, including that DEFENDANT disgorge profits and return or pay to PLAINTIFFS
10 and members of the Class all of DEFENDANT’S ill-gotten gains obtained from the
11 misappropriation, and/or pay restitution. PLAINTIFFS also requests a court order that an asset
12 freeze or constructive trust be imposed over all monies in DEFENDANT’S possession which
13 rightfully belongs to PLAINTIFFS and members of the Class.
14

FIFTH CAUSE OF ACTION

15

VIOLATION OF CALIFORNIA FALSE ADVERTISING LAW

16

(CAL. BUS. & PROF. CODE § 17500 ET SEQ.)

17

95.

PLAINTIFFS re-allege the foregoing paragraphs of this complaint and incorporate

18 the same by reference as though set forth at length herein.
19

96.

DEFENDANT committed acts of false advertising as defined by California

20 Business & Professions Code § 17500 et seq. by disseminating statements that were untrue or
21 misleading in connection with advertising of sponsored pages, by creating the false impression
22 that its users liked or promoted the products, services and/or companies in said pages, and by
23 disseminating statements, including but not limited to its terms of use (including its Statement of
24 Rights and Responsibilities and Data Use Policy), that were intended to lead reasonable
25 consumers, including PLAINTIFFS and Class members, to believe that Facebook was a medium
26 intended to convey truthful information and that DEFENDANT would not create information
27 about consumers or make false representations about them, in the manner alleged above.
28

97.

DEFENDANT knew or should have known through the exercise of reasonable care
16
CLASS ACTION COMPLAINT

1 that the statements were untrue and misleading and that PLAINTIFFS and Class members would
2 rely on them to their detriment.
3

98.

DEFENDANT’s actions in violation of California Business & Professions Code §

4 17500 were false and misleading such that the general public was likely to be deceived in that
5 DEFENDANT failed to inform PLAINTIFFS and Class members that DEFENDANT would
6 falsely attribute sponsorship, endorsement, approval, and preference in the form of “Likes” to
7 them when publishing advertisements.
8

99.

PLAINTIFFS and Class members relied on DEFENDANT’S false and misleading

9 representations and omissions in deciding to register for Facebook or remain registered with
10 Facebook, provide personal information, and post content.
11

100.

As a direct and proximate result of these acts, PLAINTIFFS have suffered injury in

12 fact and has lost money or property, including but not limited to loss to their reputations, the
13 misappropriation of their likenesses (which has monetary value), the lessened value of
14 DEFENDANT’S service to them, and the diminishment in value of their personal
15 information. Consequently, PLAINTIFFS brings this cause of action on behalf of themsleves and
16 the putative class and on behalf of the common or general interest and seeks restitution,
17 disgorgement, injunctive relief, and all other relief allowable under § 17500 et seq.
18

SIXTH CAUSE OF ACTION

19

VIOLATIONS OF THE CONSUMER LEGAL REMEDIES ACT

20

CAL. CIV. CODE § 1750 ET SEQ.

21

101.

PLAINTIFFS incorporate by reference all of the above paragraphs of this

22 Complaint as though fully stated herein.
23

102.

This cause of action is brought for violations of the Consumer Legal Remedies Act

24 (“CLRA”). PLAINTIFFS brings this cause of action on their own behalf and on behalf of all
25 similarly situated consumers within the meaning of Civil Code § 1781.
26 ///
27 ///
28

///
17
CLASS ACTION COMPLAINT

1

103.

As set forth herein, DEFENDANT violated and continues to violate the CLRA by

2 engaging in the following practices among others proscribed by California Civil Code § 1770(a) in
3 transactions that were intended to result in and did result in the sale of goods and services to
4 consumers, including PLAINTIFFS and Class members:
5

(a)

6

misrepresenting the source, sponsorship, approval, or certification of goods
or services; and

7

(b)

representing

that

goods

or

services

have

sponsorship,

approval,

8

characteristics, ingredients, uses, benefits, or quantities which they do not

9

have or that a person has a sponsorship, approval, status, affiliation, or

10
11

connection which he or she does not have.
104.

Specifically, DEFENDANT represented to the public that its users, including

12 PLAINTIFFS and Class members, sponsored or liked certain products or companies without their
13 knowledge or permission. DEFENDANT knew or should have known that its representations and
14 advertisements regarding its services were false and misleading.
15

105.

PLAINTIFFS and other Class members relied on DEFENDANT’S representations

16 in deciding to register for Facebook or remain registered with Facebook, provide personal
17 information, and post content.
18

106.

As a direct and proximate cause of DEFENDANT’S violation of the CLRA as

19 alleged hereinabove, PLAINTIFFS and Class members have suffered damages, including but not
20 limited loss of money or property.
21

107.

Pursuant to California Civil Code § 1780, PLAINTIFFS, on behalf of themselves

22 and the Class, seek damages, restitution, injunctive relief, punitive damages, attorneys’ fees, and
23 the costs of litigation.
24

108. On or about January 08, 2014, PLAINTIFFS, on behalf of themselves and the

25 putative class, sent by certified mail return receipt requested a notice and demand pursuant to
26 California Civil Code § 1782 notifying DEFENDANT that it is in violation of the CLRA and must
27 correct, repair, replace, or otherwise rectify the violations. DEFENDANT was further advised that
28 in the event the relief requested has not been provided within 30 days, PLAINTIFFS would seek
18
CLASS ACTION COMPLAINT

1 monetary damages pursuant to the CLRA. If DEFENDANT fails to rectify or agree to rectify the
2 problems associated with the actions detailed above or give notice to all affected consumers within
3 30 days of the date of the written notice pursuant to California Civil Code § 1782, PLAINTIFFS
4 will seek actual, punitive, and statutory damages as appropriate.
5

SEVENTH CAUSE OF ACTION

6

NEGLIGENCE

7

109.

PLAINTIFFS incorporate by reference all of the above paragraphs of this

8 Complaint as though fully stated herein.
9

110.

DEFENDANT solicits and encourages PLAINTIFFS and Class members to

10 register and use Facebook and post content on it. As part of using DEFENDANT’S service,
11 PLAINTIFFS and members of the Class regularly post content and other personal information to
12 be seen by other persons, including their Facebook Friends.
13

111.

By soliciting and encouraging PLAINTIFFS and Class members to register and use

14 Facebook and post content, and by agreeing to accept PLAINTIFFS’ and Class members’ content
15 and information, DEFENDANT assumed a duty to exercise reasonable care not to misrepresent
16 information about PLAINTIFFS and the Class in connection with advertisements or otherwise,
17 including information they do or do not post or products, services, and/or companies they do or do
18 not sponsor, endorse, or prefer in the form of “Likes.”
19

112.

DEFENDANT breached its duty of care to PLAINTIFFS and Class members by

20 misrepresenting their Facebook content and information and by perpetuating false information, as
21 alleged herein.
22

113.

As a direct and proximate cause of DEFENDANT’S failure to exercise reasonable

23 care, PLAINTIFFS and Class members have suffered economic and non-economic injuries in the
24 form the decreased value of their personal information, the lessened value to them of
25 DEFENDANT’S Facebook service, loss of time in correcting DEFENDANT’S false
26 representations and/or communicating with Friends to correct these false representations, loss of
27 reputation, misappropriation of their likenesses (which have monetary value), as well as
28 embarrassment, shock, anger, confusion, anxiety, and dismay.
19
CLASS ACTION COMPLAINT

1

114.

In making the false representations alleged above, DEFENDANT was guilty of

2 negligence, oppression, fraud, or malice, in that DEFENDANT made the disclosure negligent or
3 with a willful and conscious disregard of PLAINTIFFS’ and Class members’ property rights.
4 PLAINTIFFS therefore seek an award of damages, including punitive damages, in an amount to
5 be proven at trial, on behalf of themselves and the Class.
6

115.

PLAINTIFFS believe that DEFENDANT will to continue disclosing the above

7 information. Unless and until enjoined and restrained by order of this court, DEFENDANT’S
8 continued publication will cause PLAINTIFFS and Class members great and irreparable injury.
9 PLAINTIFFS have no adequate remedy at law for the injuries being suffered in that a judgment
10 for monetary damages will not put a stop to DEFENDANT’S tortious conduct as alleged herein.
11

EIGHTH CAUSE OF ACTION

12

BREACH OF CONTRACT

13
97.

PLAINTIFFS incorporate by reference all of the above paragraphs of this

14
Complaint as though fully stated herein.

15
98.

DEFENDANT entered into a contract with PLAINTIFFS and Class members in

16
part expressed in DEFENDANT’S user agreement and other terms and conditions of use whereby

17
DEFENDANT agreed to provide its Facebook service to them in exchange for DEFENDANT’S

18
access to their personal information and Facebook content so that it could, among other things, sell

19
advertising space to marketers.

20
99.

As part of this bargain, DEFENDANT agreed, whether explicitly or impliedly, not

21
to interject false content and/or make false representations about PLAINTIFFS and Class

22
members that would be visible to other Facebook users, specifically users’ Friends, as this would

23
diminish, reduce, and/or eliminate the value of the service to PLAINTIFFS and Class members.

24
100.

DEFENDANT materially breached this contract with PLAINTIFFS and Class

25
members by its conduct alleged herein, namely, by projecting false information to others,

26
including their Facebook Friends

27
101.

As a direct and proximate cause of DEFENDANT’s breach, PLAINTIFFS and

28
members of the Class have incurred damages in that they did not receive the benefit of the bargain
20
CLASS ACTION COMPLAINT

1 for which they contracted and for which they paid valuable consideration in the form of their
2 Facebook membership and presence, personal information, and Facebook content. Owing to
3 DEFENDANT’S breach, PLAINTIFFS and Class members overpaid for the bargained-for service
4 and therefore are entitled to damages in an amount to be proven at trial.
5

NINTH CAUSE OF ACTION

6

BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

7

102.

PLAINTIFFS incorporate by reference all of the above paragraphs of this

8 Complaint as though fully stated herein.
9

103.

Members of the Class, including PLAINTIFFS, entered into a contract alleged

10 herein above. Implied in this contract was a covenant of good faith and fair dealing by each party
11 not to do anything that will deprive the other parties of the benefits of the contract such as falsely
12 representing content and information to give the appearance that PLAINTIFFS and Class
13 members sponsored or endorsed products, services, and/or companies in the form of “Likes” when
14 in fact they did not.
15

104.

PLAINTIFFS and Class members have performed all conditions, covenants, and

16 promises required of them under the contract, namely, they have registered with DEFENDANT’S
17 services and provided information and content.
18

105.

DEFENDANT breached the implied covenant of good faith and fair dealing by

19 falsely representing content and information to give the appearance that PLAINTIFFS and Class
20 members sponsored or endorsed products, services, and/or companies in the form of “Likes” when
21 in fact they did not.
22

106.

As a direct and proximate cause of DEFENDANT’S breach of the implied

23 covenant of good faith and fair dealing, PLAINTIFFS and Class members have been damaged, as
24 alleged above, in an amount to be proven at the time of trial.
25

TENTH CAUSE OF ACTION

26

RESTITUTION BASED ON QUASI-CONTRACT/UNJUST ENRICHMENT

27

107.

PLAINTIFFS incorporate by reference each allegation set forth above.

28 PLAINTIFFS plead this cause of action in the alternative.
21
CLASS ACTION COMPLAINT

1

108.

DEFENDANT has been unjustly enriched at the expense of PLAINTIFFS and the

2 Class, thereby creating a quasi-contractual obligation DEFENDANT to restore these ill-gotten
3 gains to PLAINTIFFS and Class members.
4

109.

Specifically, PLAINTIFFS and other Class members conferred benefits on

5 DEFENDANT by signing up for Facebook and thereby increasing the number of Facebook users
6 and also granting Facebook permission to use their personal information and Facebook content, all
7 of which DEFENDANT derives a benefit from through its sale of advertising space.
8

110.

DEFENDANT received benefits from PLAINTIFFS and Class members by

9 misattributing endorsement and preferences in the form of “Likes” to them for various products,
10 services, and/or companies when they had not in fact endorsed or preferred those products,
11 services, and/or companies. In this way, PLAINTIFFS and Class members conferred a benefit on
12 DEFENDANT by endorsing and sponsoring products, companies, and/or services that they had
13 not in fact “Liked” on Facebook.
14

111.

As a direct and proximate result of DEFENDANT’s unjust enrichment,

15 PLAINTIFFS and Class members are entitled to restitution and/or disgorgement, in an amount to
16 be proved at trial.
PRAYER FOR RELIEF

17
18

WHEREFORE, PLAINTIFFS respectfully requests that the Court grant PLAINTIFFS and

19 the Class members the following relief against DEFENDANT:
20

a. An order certifying the proposed class and appointing PLAINTIFFS and

21
22

PLAINTIFFS’ counsel to represent the Class;
b. Injunctive relief prohibiting DEFENDANT from engaging in such conduct as alleged

23
24

herein in the future as to all Counts;
c. An order declaring that DEFENDANT’s

25

acts and

practices

misappropriation of likeness, as alleged herein as to Counts I, II and III;

26

d. Actual damages as to all Counts

27

e.

28

f. Punitive damages as to Counts I, II, III, IV and VI;

Statutory damages as to Counts I and V;

22
CLASS ACTION COMPLAINT

constitute a

1
2

g. Restitution, or any other equitable relief the Court may deem just and proper as to all
Counts;

3

h. Pre-judgment and post-judgment interest as to all Counts;

4

i. Reasonable attorneys’ fees and costs of the suit, including expert witness fees as to All

5
6

Counts; and
j. Any other relief the Court may deem just and proper.

7
TRIAL BY JURY

8
9

PLAINTIFFS hereby demand a jury trial on all issues so triable.

10
11

Dated: January 15, 2014

Respectfully Submitted
By:/s/ Todd M. Friedman, Esq.
Todd M. Friedman, Esq.
Attorney for PLAINTIFFS

12
13
14 KAZEROUNI LAW GROUP, APC
Abbas Kazerounian, Esq. (SBN: 249203)

15 [e-mail]
16 245 Fischer Avenue, Unit D1
Costa Mesa, CA 92626
17 Telephone: [phone]
Facsimile: [phone]

18

HYDE & SWIGART
Joshua B. Swigart, Esq. (SBN: 225557)
20 [e-mail]
411 Camino Del Rio South, Suite 301
21 San Diego, CA 92108
Telephone: [phone]
22 Facsimile: [phone]

19

23
24
25
26
27
28
23
CLASS ACTION COMPLAINT

1
2
3
4
5
6

EXHIBIT A

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
CLASS ACTION COMPLAINT

1

EXHIBIT B

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
25
CLASS ACTION COMPLAINT

1

EXHIBIT C

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26
CLASS ACTION COMPLAINT