Conley et al v. Carrier IQ, Inc.

Filing 2

COMPLAINT against Carrier IQ, Inc. ( Filing fee $ 350 receipt number 0754-1567533.), filed by Justin Conley, Brandon Ivy-Perry, Jeremy Bain, Laura Lebryk. (Attachments: # 1 Civil Cover Sheet)(Cates, David)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

JUSTIN CONLEY, BRANDON
IVY-PERRY, LAURA LEBRYK, and
JEREMY BAIN, as Individuals and on
behalf of the Class,
Plaintiffs,
vs.
CARRIER IQ, INC.
Defendant.

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NO.

3:11-cv-01059-GPM-SCW

CLASS ACTION COMPLAINT
NOW COMES Plaintiffs, Justin Conley, Brandon Ivy-Perry, Laura Lebryk and Jeremy
Bain, on behalf of themselves and all others similarly situated, by their attorneys, David Cates
and The Cates Law Firm, LLC, and for the various causes of action against Carrier IQ, Inc., state
as follows:
PARTIES
1.

Plaintiff, Justin Conley, owns an iPhone 4, which is operating on AT&T’s cellular

network. Plaintiff Conley is a citizen of the State of Illinois, who resides in St. Clair County,
Illinois.
2.

Plaintiff, Brandon Ivy-Perry, owns an Apple iPhone 4S, which is operating on

Sprint’s cellular network. Plaintiff Ivy-Perry is a citizen of the State of Illinois, who resides in
St. Clair County, Illinois. Plaintiff Ivy-Perry formerly owned an HTC Evvo, also on the Sprint
Network.

Page 1 of 21

3.

Plaintiff, Laura Lebryk, owns an iPhone 4S, which is operating on AT&T’s

cellular network. Plaintiff Lebryk, is a citizen of the State of Illinois, who resides in St. Clair
County, Illinois.
4.

Plaintiff, Jeremy Bain, owns an HTC manufactured phone using the Android OS,

which is operating on T-Mobile’s cellular network. Plaintiff Bain is a citizen of the State of
Illinois, who resides in St. Clair County, Illinois.
5.

At all times relevant herein, Defendant, Carrier IQ, Inc., (“Carrier IQ”) was a

Delaware Corporation, with its principal place of business located at 1200 Villa Street, Suite
200, Mountain View, California, registered to do business in the State of Illinois.
6.

At all times relevant herein, Carrier IQ was doing business in the State of Illinois

and maintained an office at 1111 Plaza Drive, Suite 330, Schaumburg, Illinois 60173.
JURISDICTION AND VENUE
7.

This Court has jurisdiction over this action under both the Class Action Fairness

Act of 2005, 28 U.S.C. 1332(d)(2), as Plaintiffs are citizens of Illinois, Defendant is a citizen of
Delaware, and the amount in controversy exceeds $5,000,000.00 and under 28 U.S.C. §1331 as
Defendant has violated 18 U.S.C. §2510¸ et seq., and 18 U.S.C. §2701, et seq.
8.

Venue is proper in this Court pursuant to 28 U.S.C. § 1391 in that Plaintiffs

(except for one) are residents of this District, many of the acts and transactions giving rise to this
action occurred in this District, and because Carrier IQ:
a.

Is authorized to conduct business in this district and has availed itself of
the laws and markets within this district within this district by the
distribution and sale of its product in this District;

b.

Does substantial business in this District; and,

c.

Is subject to personal jurisdiction in the State of Illinois and in this
District.
Page 2 of 21

GENERAL FACTUAL ALLEGATIONS
COMMON TO ALL COUNTS OF PLAINTIFF’S COMPLAINT
9.

Carrier IQ, Inc., is a software developer and manufacturer. “Carrier IQ, Inc. is the

world’s leading provider of Mobile Service Intelligence solutions. Founded in 2005 and with a
management team steeped in the mobile telecoms industry, the company is privately held and
funded by some of the leading players in the venture capital industry.” www.carrieriq.com.
10.

At issue in this lawsuit is whether Carrier IQ, Inc., (hereafter, “Carrier IQ”)

violated certain laws applicable to members of the Class by placing its patented Carrier IQ
software on the wireless phone and/or handsets of the members of the Class, including Plaintiffs
herein; using that software to track the information that the users of the phone (and/or handset)
entered through their keystrokes, including such information as websites visited, messages to
other individuals, recording of calls, and all other keystrokes, which were then recorded and
relayed to Carrier IQ, Inc. for distribution to third parties – all without the consent or knowledge
of the members of the Class, including Plaintiffs herein.
11.

By partnering with a variety of “wireless carriers,” the Carrier IQ software was

placed on wireless phones running the Android OS, on iPhones and BlackBerrys, thereby
allowing Carrier IQ to surreptitiously record all “key strokes” entered by the users into their
phone or handheld device. The data surreptitiously captured is then sent to Carrier IQ, without
the consent or knowledge of the individual using the phone or handheld device (collectively
referred to hereafter as “handsets”).
12.

Upon information and belief, the information generated by recording the

“keystrokes” (hereafter referred to generally as “keystroke data”) was valuable to the wireless
carriers and handset manufacturers who were customers of Carrier IQ. Because of the value of

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this keystroke data, Carrier IQ was able to surreptitiously install its Carrier IQ software into
millions of handsets, by selling its software program to the wireless carriers and handset
manufacturers.
13.

All Plaintiffs herein have handsets, which contain, upon information and belief,

the Carrier IQ software program (generically referred to hereafter as “Carrier IQ software
application”).
14.

Upon information and belief, Carrier IQ boasts that its Carrier IQ software

application is installed in more than 140,000,000 handsets in the U.S. alone. www.carrieriq.com.
15.

Upon information and belief, the Carrier IQ software application is what is known

as a “rootkit” application, which, in general terms, means software that enables Carrier IQ access
to a handset or information stored or logged in the handset, but which is hidden from the user or
administrator by subverting standard operating system functions within the handset. In other
words, simply put, a “rootkit” application allows Carrier IQ access to the data on a user’s handset
without the knowledge of the user.
16.

Upon information and belief, Carrier IQ installed the Carrier IQ software

application into handsets, such as the HTC Evvo, iPhone, and Blackberry at the requests of
certain wireless carriers and handset manufacturers.
17.

Once a handset is sold, and immediately upon activation, the Carrier IQ software

application begins tracking all keystrokes made by the user on that handset, even including
supposedly encrypted web addresses, which are submitted via a secure socket layer (https) and
are supposed to be encrypted from view.
18.

Upon information and belief, Carrier IQ, through its Carrier IQ software

application, can also record phone calls and voicemails, and stores location and usage data.

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19.

Upon information and belief, Carrier IQ, through its Carrier IQ software

application, is constantly tracking this keystroke data, even when the handset is not connected
via a wireless connection, so that a wireless carrier would not have any legitimate reason to be
monitoring the usage of the handset (if such a reason could exist in the first instance).
20.

Upon information and belief, the Carrier IQ software application cannot be

disabled, even by using a “Force Quit” button contained within the software application (if the
software can even be located), which would make the user think the application has been turned
off.
21.

Upon information and belief, Carrier IQ created this software application with the

ability to log every keystroke and keystroke data entry on a handset, including the recording of
phone calls and voicemails, and then granted the wireless carriers the ability to determine what
keystroke data the wireless carrier wanted to capture from the unsuspecting users, who were not
told that their devices were being monitored, and, likewise, were not told that the keystroke data
was being shared with third parties.
22.

Upon information and belief, the wireless carriers, all of whom were customers of

Carrier IQ, were also able to place events in the software application that would cause a user’s
handset to automatically send reports back to Carrier IQ or the wireless carrier that contained the
keystroke data that Carrier IQ had stored, all without the user’s knowledge or consent. (This
feature is referred to generally hereafter as the “phone home feature.”)
23.

In addition to the “phone home” feature, upon information and belief, Carrier IQ,

and/or the wireless carriers, also maintained the ability to contact individual handsets, or a couple
of handsets, running the Carrier IQ software application that would allow them to download the

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keystroke data from Carrier IQ software application that was running on a user’s handset, all
without the user’s knowledge and/or consent.
24.

Carrier IQ’s intent in the creation of this software application could not be clearer,

as the patent application for the software application reads, in pertinent part:
2.

A method for collecting data at a server coupled to a
communications network, comprising: transmitting to a device a
data collection profile, wherein the data collection profile
comprises a plurality of parameters defining a set of data to be
collected by the device, a first condition under which the set of
data is to be collected, and a second condition under which the set
of data is to be transmitted; and receiving from the device the set
of data collected in response to the second condition.

10.

The method of claim 2, wherein the set of data relates to an end
user's interaction with the device.

11.

The method of claim 10, wherein the interaction with the device
comprises the end user's pressing of keys on the device.

Patent Application #20110106942, published May 5, 2011.
25.

By its own admission, Carrier IQ intended to create a software application

(“method”) to capture keystroke data, including voice recordings and other actions inputted by a
user on his/her handset.
26.

Carrier IQ developed said software application with the intent to sell the software

application to third party wireless carriers who, in conjunction with Carrier IQ, installed the
software application on the handsets purchased by the wireless carriers’ customers. Thereafter,
Carrier IQ, in conjunction with the wireless carriers, willfully, intentionally, and surreptitiously
downloaded and tracked the keystroke data entered by the user of the handset, all without the
user’s consent and/or knowledge. 1

1

When Defendant’s conduct was revealed in late November 2011 by a tech blogger, Carrier IQ sent a threatening
cease and desist letter threatening litigation which it subsequently withdrew when the blogger demonstrated video of
proof the Carrier IQ software application actively tracking all keystrokes on a phone.

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27.

In addition to the fact that Defendant willfully, intentionally and illegally tracked,

gathered and stored the keystroke data from the Plaintiffs’ handsets, the Defendant also “piggybacked” on the available memory contained in the handsets of Plaintiffs and members of the
Class. Carrier IQ’s unlawful taking of memory from the Plaintiffs and members of the Class
caused injury to the handset user because the owner of the handset did not receive the benefit of
the bargain for which he/she had contracted.
28.

Specifically, when the Plaintiffs herein purchased their respective handset, each

handset had a specific value, all of which ranged between two hundred dollars and four hundred
dollars, even with the agreement to a new or renewed service plan. None of Plaintiffs’ handsets
came with unlimited data storage or memory.
29.

Therefore, when the purchaser of the handset bought his/her device, he/she

purchased the handset knowing that there was a limited, albeit advertised, amount of memory
available. Therefore, the amount of memory available has a set value, differing only by the price
of the handset.
30.

When the Defendant, Carrier IQ, tracks, gathers and stores the keystroke data on

Plaintiffs’ handsets, Carrier IQ intentionally and willfully deprives each and every user of the
valuable memory and data storage capacity which the user bargained for in his/her purchase of
the handset, all without informing the user and/or gaining his/her consent.
31.

Therefore, Carrier IQ, through its software application, has intentionally, willfully

and illegally stolen storage memory from Plaintiffs and each and every members of the Class.
As a result of Carrier IQ’s willful, intentional and illegal conduct, the value of the handset is
decreased by the amount of memory unlawfully pirated by Carrier IQ, all without the knowledge
of the user.

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32.

Carrier IQ has profited from the illicit tracking, gathering and storage and

subsequent transmission of the keystroke data entered by Plaintiffs and members of the Class,
considering that Carrier IQ has infected over 140,000,000 handsets with the Carrier IQ software
application.
33.

Upon information and belief, Carrier IQ has profited from the sale and/or

licensing of this software application to the wireless carriers and handset manufacturers by
advertising that the Carrier IQ software application “give[s] Wireless Carriers and Handset
Manufacturers unprecedented insight into their customers’ mobile experience.”
www.carrieriq.com.
34.

Plaintiffs and members of the proposed Class were further harmed because their

handset were used in ways without their consent or permission, and without their knowledge,
because their personal information was willfully and intentionally stolen and transmitted via the
internet, and may have been stolen while being broadcast.
35.

Carrier IQ has violated several federal laws regarding the access of personal

information via computer devices and over wire communications, including the Electronic
Communications Privacy Act (18 U.S.C. §2511 et seq.) and the Stored Communications Act (18
U.SC. §2701 et seq.).
36.

Even without a specific injury in fact, statutory damages are available to Plaintiffs

and members of the Class for violations of the Electronic Communications Privacy Act (18
U.S.C. §2511 et seq.) and the Stored Communications Act (18 U.SC. §2701 et seq.) as more
fully set forth hereafter.

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37.

Further, Carrier IQ has violated various provisions of Illinois law, all to detriment

of Plaintiffs and the Class, thereby causing Plaintiffs and the members of the Class various
damages, as further described hereafter.
COUNT I
Violation of 18 U.S.C. §2511 – Electronic Communications Privacy Act – Interception And
Disclosure Of Wire, Oral Or Electronic Communications Prohibited
For Count I of their cause of action on behalf of themselves and all others similarly
situated, Plaintiffs, Justin Conley, Brandon Ivy-Perry, Laura Lebryk, and Jeremy Bain, state the
following:
38.

Plaintiffs hereby re-allege and incorporate herein paragraphs 1 through 38 as

though fully set forth herein.
39.

The United States Code, at 18 U.S.C. §2511 “Interception and disclosure of wire,

oral, or electronic communications prohibited,” states in pertinent part:
“(1) Except as otherwise specifically provided in this chapter, any person who—
(a)

Intentionally intercepts, endeavors to intercept or procures any
other person to intercept or endeavor to intercept, any wire, oral or
electronic communication;

(b)

Intentionally uses, endeavors to use, or procures any other person
to use or endeavor to use any electronic, mechanical, or other
device to intercept any oral communication when—

(i)

(ii)

(iii)

such device is affixed to, or otherwise transmits a signal
through, a wire, cable, or other like connection used in
wire communication; or
such device transmits communications by radio, or
interferes with the transmission of such communication;
or
such person knows, or has reason to know, that such
device or any component thereof has been sent through
the mail or transported in interstate or foreign commerce;
or

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(iv)

*

such use or endeavor to use (A) takes place on the
premises of any business or other commercial
establishment the operations of which affect interstate or
foreign commerce; or (B) obtains or is for the purpose of
obtaining information relating to the operations of any
business or other commercial establishment the
operations of which affect interstate or foreign
commerce;
*

*

(c)

intentionally discloses or endeavors to disclose, to any other person
the contents of any wire, oral or electronic communication,
knowing or having reason to know that the information was
obtained through the interception of a wire, oral or electronic
communication in violation of this subsection;

(d)

intentionally uses, or endeavors to use, the contents of any wire,
oral or electronic communication, knowing or having reason to
know that the information was obtained through the interception of
a wire, oral, or electronic communication in violation of this
subsection;
*

*

*

shall be punished as provided in subsection (4) or shall be subject to suit as
provided in subsection (5).
28 U.S.C. §2511.
40.

Carrier IQ created a software application that it surreptitiously installed on

Plaintiffs’ and the putative class members’ handsets that tracked, gathered, stored, transferred,
and removed keystroke data, including data communications and recorded and intercepted phone
calls and voice messages to the handsets of Plaintiffs and members of the Class, all without the
knowledge of the Plaintiffs and/or members of the Class.
41.

Upon information and belief, the Carrier IQ software application also willfully

and intentionally took the intercepted keystroke data, and sent it to Carrier IQ, who then
distributed the keystroke data to unauthorized third parties, all in violation of 18 U.S.C. §2511.

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42.

18 U.S.C. §2520 allows the Plaintiffs and members of the Class a private cause of

action for the violation of 28 U.S.C. §2511.
43.

Further, 18 U.S.C. §2520(c)(2) authorizes damages as follows:
(2)

44.

In any other action under this section, the court may assess as damages
whichever is the greater of (A)
the sum of the actual damages suffered by the plaintiff and any
profits made by the violator as a result of the violation; or
(B)
statutory damages of whichever is the greater of $100 a day for
each day of violation or $10,000.

Plaintiffs and members of the Class have suffered actual damages because of

Carrier IQ’s willful and intentional pirating of the memory available to each owner of the
handset. Alternatively, Plaintiffs and members of the Class are entitled to statutory damages.
45.

Further, 18 U.S.C. §2520(b) allows for recovery of punitive damages, attorney’s

fees, and other litigation costs.

COUNT II - Violation of 18 U.S.C. §2512 – Electronic Communications Privacy Act –
Manufacture, Distribution, Possession And Advertising Of Wire, Oral Or Electronic
Communications Intercepting Devices Prohibited

For Count II of their cause of action on behalf of themselves and all others similarly
situated, Plaintiffs, Justin Conley, Brandon Ivy-Perry, Laura Lebryk and Jeremy Bain, state the
following:
46.

Plaintiffs hereby re-allege and incorporate herein paragraphs 1 through 38 as

though fully set forth herein.
47.

The United States Code, 18 U.S.C. §2512(1) “Manufacture, distribution,

possession, and advertising of wire, oral, or electronic communication intercepting devices
prohibited,” states:

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(1)

Except as otherwise specifically provided in this chapter, any person who
intentionally –
(a)

sends through the mail or sends or carries in interstate or foreign
commerce, any electronic, mechanical, or other device, knowing or
having reason to know that the design of such device renders it
primarily useful for the purpose of the surreptitious interception of
wire, oral, or electronic communications;

(b)

manufactures, assembles, possesses, or sells any electronic,
mechanical, or other device, knowing or having reason to know
that the design of such device renders it primarily useful for the
purpose of the surreptitious interception of wire, oral or electronic
communications, and that such device or any component thereof
has been or will be sent through the mail or transported in interests
or foreign commerce; or

(c)

places in any newspaper, magazine, handbill or other publication
or disseminates by electronic means and advertisement of –
(i)

(ii)

any electronic, mechanical, or other device knowing the
content of the advertisement and knowing or having reason
to know that the design of such device renders it primarily
useful for the purpose of the surreptitious interception of
wire, oral or electronic communications; or
any other electronic or mechanical, or other device, where
such advertisement promotes the use of such device for the
purpose of the surreptitious interception of wire, oral, or
electronic communications, knowing the content of the
advertisement and knowing or having reason to know that
such advertisement will be sent through mail or transported
in interstate or foreign commerce,

Shall be fined under this title or imprisoned not more than five years, or
both.
18 U.S.C. §2512(1)
48.

Carrier IQ created a software application that it surreptitiously installed on

Plaintiffs’ and the putative class members’ handsets that tracked, gathered, stored, transferred,
and removed keystroke data, including data communications and recorded and intercepted phone

Page 12 of 21

calls and voice messages to the handsets of Plaintiffs and members of the Class, all without the
knowledge of the Plaintiffs and/or members of the Class.
49.

At the time Carrier IQ installed the Carrier IQ software application in handsets,

Carrier IQ knew that the design of its software application and the design of the handset that
contained the software application rendered the handset primarily useful for the purpose of the
surreptitious interception of wire, oral or electronic communications, and that such handset and
its component part, i.e., the software application, would be sent through the mail or transported
in interests or foreign commerce, all in violation of 18 U.S.C. §2512(1).
50.

Further, Carrier IQ violated 18 U.S.C. §2512(1) when it advertised via electronic

means (i.e., its website) that the Carrier IQ software application when inserted into a handset,
allowed “Wireless carriers and Handset Manufacturers unprecedented insight into their
customers’ mobile experience.” Carrier IQ advertised its software application knowing, or
having reason to know, that the design of such a component part device rendered the handset
primarily useful for the purpose of the surreptitious interception of wire, oral or electronic
communications, all in violation of 18 U.S.C. §2512(1).
51.

18 U.S.C. §2520 allows the Plaintiffs and members of the Class a private cause of

action for the violation of 28 U.S.C. §2511.
52.

Further, 18 U.S.C. §2520(c)(2) authorizes damages as follows:
(3)

In any other action under this section, the court may assess as damages
whichever is the greater of (A)
the sum of the actual damages suffered by the plaintiff and any
profits made by the violator as a result of the violation; or
(B)
statutory damages of whichever is the greater of $100 a day for
each day of violation or $10,000.

Page 13 of 21

53.

Plaintiffs and members of the Class have suffered actual damages because of

Carrier IQ’s distribution and/or advertising of the handsets as devices primarily useful for the
purpose of the surreptitious interception of wire, oral or electronic communications.
Alternatively, Plaintiffs and members of the Class are entitled to statutory damages.
54.

Further, 18 U.S.C. §2520(b) allows for recovery of punitive damages, attorney’s

fees, and other litigation costs.

COUNT III - VIOLATION OF 18 U.S.C. §2702(A) – VOLUNTARY DISCLOSURE OF
CUSTOMER COMMUNICATIONS OR RECORDS
For Count III of their cause of action on behalf of themselves and all others similarly
situated, Plaintiffs, Justin Conley, Brandon Ivy-Perry, Laura Lebryk and Jeremy Bain, state the
following:
55.

Plaintiffs hereby re-allege and incorporate herein paragraphs 1 through 38 as

though fully set forth herein.
56.

The United States Code, 18 U.S.C. §2702(a) – Voluntary Disclosure of Customer

Communications or Records, states:
(a)

Prohibitions. - Except as provided in subsection (b) or (c) (1)

(2)

a person or entity providing an electronic communication
service to the public shall not knowingly divulge to any person
or entity the contents of a communication while in electronic
storage by that service; and
a person or entity providing remote computing service to the
public shall not knowingly divulge to any person or entity the
contents of any communication which is carried or maintained
on that service (A)
on behalf of, and received by means of electronic
transmission from (or created by means of computer
processing of communications received by means of
electronic transmission from), a subscriber or customer
of such service;
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(B)

(2)

solely for the purpose of providing storage or computer
processing services to such subscriber or customer, if
the provider is not authorized to access the contents of
any such communications for purposes of providing any
services other than storage or computer processing; and

a provider of remote computing service or electronic
communication service to the public shall not knowingly
divulge a record or other information pertaining to a subscriber
to or customer of such service (not including the contents of
communications covered by paragraph (1) or (2)) to any
governmental entity.

18 U.S.C. §2702(a).
57.

At all times relevant herein, Carrier IQ was an entity providing an electronic

communication service to the public through its development, manufacture, sale and use of the
Carrier IQ software application.
58.

Carrier IQ created a software application that it surreptitiously installed on

Plaintiffs’ and the putative class members’ handsets that tracked, gathered, stored, transferred,
and removed keystroke data, including data communications and recorded and intercepted phone
calls and voice messages to the handsets of Plaintiffs and members of the Class, all without the
knowledge of the Plaintiffs and/or members of the Class.
59.

Contrary to the plain language of 18 U.S.C. 2702(a), upon information and belief,

Carrier IQ knowingly divulged to third persons and/or entities the contents of stored keystroke
data taken surreptitiously from the handsets of Plaintiffs and members of the Class while said
keystroke data was placed in storage on the handsets of the Plaintiffs and members of the Class.
60.

At the time Carrier IQ installed the Carrier IQ software application in handsets,

Carrier IQ knew that the design of its software application and the design of the handset that
contained the software application rendered the handset primarily useful for the purpose of the
surreptitious interception of wire, oral or electronic communications, and that such handset and
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its component part, i.e., the software application, would be sent through the mail or transported
in interests or foreign commerce, all in violation of 18 U.S.C. §2512(1).
61.

Plaintiffs and members of the Class have suffered actual damages because of

Carrier IQ’s distribution and/or advertising of the handsets as devices primarily useful for the
purpose of the surreptitious interception of wire, oral or electronic communications.
Alternatively, Plaintiffs and members of the Class are entitled to statutory damages.
62.

18 U.S.C. §2707 allows the Plaintiffs and members of the Class a private cause of

action for the violation of 28 U.S.C. §2702(a).
63.

Further, 18 U.S.C. §2707 authorizes damages as follows:
(a)

Cause of Action.— Except as provided in section 2703 (e), any
provider of electronic communication service, subscriber, or other
person aggrieved by any violation of this chapter in which the conduct
constituting the violation is engaged in with a knowing or intentional
state of mind may, in a civil action, recover from the person or entity,
other than the United States, which engaged in that violation such relief
as may be appropriate.

(b)

Relief.— In a civil action under this section, appropriate relief
includes—
(1)
such preliminary and other equitable or declaratory relief as
may be appropriate;
(2)
damages under subsection (c); and
(3)
a reasonable attorney’s fee and other litigation costs reasonably
incurred.

(c)

Damages.— The court may assess as damages in a civil action under
this section the sum of the actual damages suffered by the plaintiff and
any profits made by the violator as a result of the violation, but in no
case shall a person entitled to recover receive less than the sum of
$1,000. If the violation is willful or intentional, the court may assess
punitive damages. In the case of a successful action to enforce liability
under this section, the court may assess the costs of the action, together
with reasonable attorney fees determined by the court.

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NATIONWIDE CLASS ACTION ALLEGATIONS
64.

Pursuant to Federal Rule of Civil Procedure 23, Plaintiffs on behalf of themselves

and all others similarly situated, seeks to represent the following nationwide Class:
All United States citizens who owned a handset that contained the Carrier IQ
software application that intercepted keystroke data where Carrier IQ failed to
obtain the consent of handset owner and/or failed to inform the handset owner.
Excluded from the Class are: 1) Any employees of the named Defendant,
including its officers and agents, and the immediate family of those persons;
2) Plaintiffs’ Counsel; and 3) the Judge of the Court to which this case is
assigned.
65.

Plaintiffs and members of the nationwide Class have met the requirements of

Federal Rule of Civil Procedure 23(a) in that:
A.

The nationwide Class so numerous that joinder of all members is

impractical. Plaintiffs’ proposed Class is comprised of millions of users of handsets into which
Defendant has surreptitiously placed its Carrier IQ software application. Moreover, the amount
of damages suffered individually by each member of the Class is so small as to make suit for its
recovery by each individual member of the Class economically unfeasible. Class treatment of
the claims asserted herein will provide substantial benefit to both the parties and the Court
system.
B.

There are common questions of law and fact applicable to the claims

asserted on behalf of the nationwide Class, all of which predominate over individual issues.
These common questions include, but are not limited to:
1.

Whether Defendant willfully, knowingly, intentionally and
surreptitiously installed the Carrier IQ software application in the
handsets of Plaintiffs and members of the nationwide Class;

2.

Whether the Carrier IQ software application tracked, gathered and
stored keystroke data on the nationwide Class members’ handsets;

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3.

Whether the Carrier IQ software application transferred and/or
removed data from the nationwide Class members’ handsets;

4.

Whether Carrier IQ, through the use of its Carrier IQ software
application, intentionally intercepted or endeavored to intercept, or
through a third party, intercepted any wire, oral or electronic
communication from the nationwide Class members’ handsets;

5.

Whether the nationwide Class members’ handsets, or the Carrier
IQ software application designed by Defendant, transmits a signal
through a wire or cable or other like connection used in wire
communication, as defined in 18 U.S.C. §2510, et seq.;

6.

Whether the nationwide Class members’ handsets and/or the
Carrier IQ software application, and the keystroke data obtained,
meets the definitions specified by 18 U.S.C. §2510;

7.

Whether Carrier IQ intentionally disclosed, or endeavored to
disclose, to any other person, as defined by 18 U.S.C. §2510, et
seq., the contents of any wire, oral or electronic communication,
knowing or having reason to know that the information was
obtained through the interception of a wire, oral or electronic
communication in violation of this subsection;

8.

Whether Carrier IQ intentionally used, or endeavored to use, the
contents of any wire, oral or electronic communication, knowing
or having reason to know that the information was obtained
through the interception of a wire, oral, or electronic
communication;

9.

Whether Carrier IQ had any legal justification to intercept, track,
collect, store, transfer, or remove the keystroke data obtained from
the members of the nationwide Class or the recording of phone
calls and messages;

10.

Whether the conduct of Carrier IQ violated 18 U.S.C. §2511;

11.

Whether the conduct of Carrier IQ violated 18 U.S.C. §2512(1);

12.

Whether the conduct of Carrier IQ violated 18 U.S.C. §2702(a);

13.

Whether the members of the nationwide Class have suffered an
injury in fact or are entitled to statutory damages;

14.

Whether the conduct of Carrier IQ was willful, intentional and
malicious, justifying an award of punitive damages.
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C.

The Plaintiffs’ claims are typical of the claims of the proposed nationwide

Class, in that the Plaintiffs and members of the nationwide Class will all have had the Carrier IQ
software application inserted on their handsets. All will have had their keystroke data
intercepted unlawfully.
D.

Plaintiffs will fairly and adequately represent and protect the interests of

the proposed nationwide Class. Plaintiffs do not have any interests antagonistic to those of the
members of the nationwide Class. Further, Plaintiffs have retained competent and experienced
counsel in the prosecution of this type of litigation.
66.

Plaintiffs and members of the nationwide Class have met the requirements of

Federal Rule of Civil Procedure 23(b)(3) in that:
A.

The questions of law and/or fact common to the members of the

nationwide Class, as set forth above, predominate over any questions affecting only individual
members of the Class. The prosecution of separate actions by individual members of the
nationwide Class could lead to inconsistent or varying adjudications with respect to individual
members of the nationwide Class and could substantially impair or impede the ability of other
Class members to protect their interests.
B.

A class action is superior to other available methods for the fair and

efficient adjudication of this controversy because members of the Class number in the millions
and individual joinder is impractical. Further, the class action vehicle is the most appropriate
and superior form for the fair and efficient adjudication of this claim, given that:
(1)

Common questions of law or fact predominate over any individual
questions that may arise, such that there would be enormous
economies to the courts and the parties in litigating the common
issues on a class-wide basis instead of a repetitive individual basis;

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(2)

Class Members' individual damage claims are too small to make
individual litigation an economically viable alternative;

(3)

Class treatment is required for optimal deterrence and
compensation and for limiting legal expenses incurred by Class
Members;

(4)

Despite the relatively small size of the nationwide Class Members’
individual claims, their aggregate volume, coupled with the
economies of scale inherent in litigating similar claims on a
common basis, will enable this case to be litigated as a nationwide
class action on a cost-effective basis, especially when compared
with repetitive individual litigation;

(5)

No unusual difficulties are likely to be encountered in management
of this action as a nationwide class action in that all questions of
law or fact to be litigated at the liability stage are common and
predominate as they relate to the nationwide Class; and,

(6)

Class certification is fair and efficient because prosecution of
separate actions would create a risk of adjudications with respect to
individual members of the nationwide Class, which, as a practical
matter, may be dispositive of the interests of other members not
parties to the adjudication, or may substantially impair or impede
their ability to protect their interests.

WHEREFORE, Plaintiffs, Justin Conley, Brandon Ivy-Perry, Laura Lebryk and Jeremy
Bain, pray for an Order of this Court as follows:
A.

Certifying the nationwide Class as requested herein;

B.

Entering an Order appointing David Cates and The Cates Law Firm, L.L.C. as

counsel for the nationwide Class; and,
C.

For an award of the actual damages suffered by Plaintiffs and members of the

nationwide Class; and,
D.

For disgorgement of profits made by Carrier IQ as a result of its violation of 18

U.S.C. §2511 et seq. and 18 U.S.C. §2702(a); and,

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E.

Or, in the alternative, on behalf of the nationwide Class, for statutory damages of

whichever is the greater of $100 a day for each day of violation or $10,000, as a result of Carrier
IQ’s violation of 18 U.S.C. §2511 et seq.; and,
F.

And, on behalf of the nationwide Class, for an award of the actual damages

suffered by Plaintiffs and members of the nationwide Class and disgorgement of profits made by
Carrier IQ as a result of its violation of 18 U.S.C. §2702(a), but in no event shall the award be
less than the sum of $1,000.00 per class member; and,
G.

On behalf of the nationwide Class, for punitive damages; and,

H.

On behalf of the nationwide Class, for attorney’s fees and costs incurred as a

result of the filing of this cause of action; and,
I.

On behalf of the nationwide Class, for injunctive relief prohibiting Carrier IQ

from further violating 18 U.S.C. §2511 et seq. and 18 U.S.C. §2702(a); and,
J.

On behalf of the nationwide Class, enjoin Carrier IQ from tracking, gathering,

storing, transferring, or removing the keystroke data and recordings of oral information made by
Carrier IQ which was obtained from the handsets of Plaintiffs and members of the nationwide
Class; and,
K.

For such other relief as this Court deems just under the circumstances.
Respectfully submitted,
/s/ David I. Cates
DAVID I. CATES #06289198
The Cates Law Firm, L.L.C.
Attorney for Plaintiff
216 West Pointe Drive, Suite A
Swansea, Illinois 62226
Telephone:
618-277-3644
Facsimile:
618-277-7882
E-mail:
[e-mail]
Attorneys for Plaintiff
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