Brown et al v. Google, Incorporated

Filing 1

COMPLAINT filed by All Plaintiffs against All Plaintiffs with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645-2955004 - Fee: $ 350. County of 1st Plaintiff: Oakland - County Where Action Arose: Wayne - County of 1st Defendant: California. [Previously dismissed case: No] [Possible companion case(s): None] (Budaj, Steven) Modified on 4/28/2011 (DTyl) [COMPLAINT FILED BY ALL PLAINTIFFS AGAINST GOOGLE, INCORPORATED] (Entered: 04/27/2011)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JULIE BROWN and KAYLA MOLASKI,
Individually and as Representatives
of a Class of Individuals
Similarly Situated,
Plaintiffs,
-vs-

Case No.:
HON:

GOOGLE, INC.,
A Delaware Corporation
Defendant,
STEVEN T. BUDAJ, P.C.
By Steven T. Budaj (P-30154)
Paul M. Hughes (P-36421)
Donald J. Andrews (P-48501)
Attorneys for Plaintiffs
65 Cadillac Square, Suite 2915
Detroit, MI 48226
[phone]
E-Mail: [e-mail]
/
CLASS ACTION COMPLAINT AND DEMAND FOR JURY TRIAL
(Injunctive Relief and Damages Sought)
Plaintiffs, JULIE BROWN and KAYLA MOLASKI, on behalf of
themselves and others similarly situated, hereby bring this action
against Defendant, Google, Inc., (hereafter “Google”) and allege
as follows:
INTRODUCTION
1. Cellular phones using the Google Android Operating System
are secretly recording and storing comprehensive details of all
their

owners'

movements.

According

to

security

experts,

the

extensive location data is hidden from users but unencrypted,

making it easy for Google or third parties to later access.
2.
System

Users of products using the Google Android Operating
have

information

no

way

because

to

prevent

even

if

Google

users

from

disable

collecting
the

Android

this
GPS

components, Google's tracking system remains functional.
PARTIES
3. Plaintiff, JULIE BROWN, is a resident of Oakland County,
Michigan, who at all relevant times has owned an HTC Inspire 4G
phone with the Google Android Operating System and carried it with
her everywhere.
4. Plaintiff, KAYLA MOLASKI, is a resident of Oakland County,
Michigan, who at all relevant times has owned an HTC Inspire 4G
phone with the Google Android Operating System and carried it with
her everywhere.
5. Defendant Google, Inc. is a Delaware corporation with its
principal place of business in California.
JURISDICTION AND VENUE
6. This court has jurisdiction over this action under 28
U.S.C. § 1332(d)(2). The amount i n controversy between the Class
as

defined

herein

and

the

Defendant

exceeds

$5,000,000.00,

exclusive of interest and costs. The Class as defined herein
consists of individuals from fifty different states.
7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391
in that Plaintiffs are residents of this district, many of the
acts and transactions giving rise to this action occurred in this

2

district, and because Google:
A.

is authorized to conduct business in this district
and has availed itself of the laws and markets
within this district through the promotion,
marketing, distribution and sale of its products in
this district;

B.

does substantial business in this district; and

C.

is subject
district.

to

personal

jurisdiction

in

this

GOOGLE'S PRIVACY VIOLATIONS
8. All Android Operating System phones log, record and store
users' locations based on latitude and longitude alongside a
timestamp and unique device ID attached to each specific phone.
The phones store this information in a file located on the phone.
Google intentionally began recording this information with the
release of its Android operating system. Google uses cell-tower
triangulation

and/or

alternatively,

Google

may

use

global

positioning system (GPS) data to obtain a users location.
9. Cellular phones using Google’s Android Operating System
obtain tracking information every few seconds and download the
user location data and unique device ID attached to each specific
phone to Google computers on a regular basis several times every
hour. The data is unencrypted while being transmitted and while
on the mobile devices.
10. Users of cellular phones using Google’s Android Operating
System, including Plaintiffs, were unaware of Google's extensive
tracking of their locations and did not knowingly consent to such
tracking.
3

11.

Google's

Terms

of

Service

do

not

disclose

its

comprehensive tracking of users nor its use of a unique device ID
attached to each specific phone. Google only discloses that it is
seeking permission to obtain location information from its Android
Operating System cell phone users. Plaintiffs and other users did
not provide any sort of informed consent to the extensive tracking
at issue in this case.
12.

Google

collects

surreptitiously and i n

the

location

information

covertly,

violations of law.

13. Google tracks users' locations on its own, separate,
apart

and

in

addition

to

the

information

it

collects

in

conjunction with other businesses that develop applications for
Google's devices. This action is not about the applications'
collection of information on users; rather, it is specifically in
objection to Google's own collection of user location information.
14. Cellular phones using Google’s Android Operating System
are carried with users to essentially every location they travel,
making

the

information

collected

by

Google

highly

personal;

indeed, in many instances it may be information to which employers
and spouses are not privy and to which Plaintiffs and other
members of the class would wish to remain private.
15.

The

accessibility

of

the

unencrypted

information

collected by Google places users at serious risk of privacy
invasions, including stalking.
16. Plaintiffs and proposed Class members were harmed by

4

Google's

accrual

of

personal

location,

movement

and

travel

histories because their cellular phones were used in ways they did
not approve, and because they were personally tracked just as if
by a tracking device for which a court-ordered warrant would
ordinarily be required.
17. Plaintiffs bring this action to stop Google's illegal and
intrusive scheme of collecting personal location information.
18. Plaintiffs seek an injunction requiring Google to disable
such

tracking

in

its

next-released

operating

system

for

the

relevant devices.
19. Plaintiffs also seek damages for violations of their
statutory and common law privacy rights.
CLASS ACTION ALLEGATIONS
20. The Plaintiffs bring this action on behalf of themselves and
proposed plaintiff Class members under Rules 23(b)(2) and (3) of the
Federal Rules of Civil Procedure. The proposed Class consists of:
All persons in the United States who purchased, owned or
carried around an Android Operating System phone between
the release of those products for sale by Google and others
and the present. Excluded from the Class are those who
purchased the products for resale; members of the federal
judiciary and their relatives; and Defendant's officers,
directors and employees.
21. While the exact number of Class members is unknown to the
Plaintiffs at this time, there are millions of members of the
proposed Class, as approximately 10 million people are activating
Google Android Operating System phones on a monthly basis. The Class
is

so

numerous

that

joinder

of

5

all

members

of

the

Class

is

impracticable.
22. This action involves questions of fact common to all Class
members because all Class members purchased, own or use Google
Android phones under uniform Google privacy policies.
23. This action involves question of law common to all Class
members because:
A.

The Computer Fraud and Abuse Act, violated here, is
national in scope and applies to all prospective Class
members;

B.

Each state has enacted laws comparable to the Federal
Trade Commission Act which provide private causes of
action with sufficient uniformity that Google's
standardized
practices
of
collecting
location
information violated the acts of each state in the
same way; and

C.

Google's privacy invasions have violated Plaintiffs’
and Class members' common law rights in uniform ways.

24. Plaintiffs’ claims are typical of those of other members of
the Class as there are no material differences in the facts and law
underlying the claims of Plaintiffs and the Class and by prosecuting
their claims Plaintiffs will advance the claims of Class members.
25. The common questions of law and fact among all Class members
predominate over any issues affecting individual members of the
Class, including but not limited to:
A.

whether Google obtained
location information;

B.

whether Google failed to disclose material terms in
its privacy policy regarding its collection of users'
location information;

C.

whether Google has or intends to market or otherwise
exploit users' location information;

6

and

stored

Plaintiffs'

D.

whether the alleged conduct constitutes violations of
the laws asserted herein;

E.

whether Plaintiffs and Class members are entitled to
declaratory and injunctive relief;

F.

whether Plaintiffs and Class members have sustained
monetary loss and the proper measure of that loss;

G.

whether Plaintiffs and Class members have sustained
consequential loss, and to what measure; and

H.

whether Google's acts and omissions warrant punitive
damages.

26. Plaintiffs' claims are typical of the claims of the proposed
Class, and Plaintiffs will fairly and adequately represent and
protect the interests of the proposed Class. Plaintiffs have retained
counsel competent and experienced in the prosecution of this type of
litigation.
27. The questions of law and fact common to the Class members,
some of which are set out above, predominate over any questions
affecting only individual Class members.
28. Class treatment of the claims set forth herein is superior
to other available methods for the fair and efficient adjudication of
this controversy. The expense and burden of individual litigation
would make it impracticable or impossible for proposed Class members
to prosecute their claims individually. Absent a class action, a
multiplicity of individual lawsuits would be required to address the
claims between Class members and Google, and inconsistent treatment
and adjudication of the claims would likely result.
29.

The

litigation

and

trial

of

Plaintiffs'

claims

is

manageable. Google's standardized "Terms and Conditions" at issue,
7

Google's uniform deployment of operating systems that track each user
in identical ways, the consistent provisions of the relevant laws,
and the readily ascertainable identities of many Class members
demonstrate that there would be no significant manageability problems
with prosecuting this lawsuit as a class action.
30. Google has acted or refused to act on grounds that apply
generally

to

the

Class

so

that

final

injunctive

relief

and

corresponding declaratory relief are appropriate.
31. Unless a class-wide injunction is issued, Google will
continue to commit the violations alleged, and the members of the
Class

will

continue

to

be

tracked,

unlawfully

surveilled,

and

potentially endangered.
32. Google has acted and refused to act on grounds generally
applicable to the Class, making appropriate injunctive relief with
respect to the Class as a whole.
33. Google's acts and omissions are the direct and proximate
cause of damage as described in the following Counts:
COUNT I
(Injunction and Declaration)
34.

Plaintiffs

re-allege

and

incorporate

by

reference

the

allegations contained in the paragraphs above as if fully set forth
herein.
35. Plaintiffs, JULIE BROWN and KAYLA MOLASKI, purchased, own,
use and carry with them an HTC Inspire cellular phone with Google's
Android Operating System and have done so at all times relevant to
this action.
8

36. Plaintiffs relied on the terms of Google's privacy policy,
which did not explain the pervasive location tracking that Google
intended to undertake and did undertake.
37. Google knew that ordinary consumers acting reasonably would
not understand the Google privacy policy to include the extensive
location tracking at issue in this case.
38. Irreparable injury has resulted and continues to result from
Google's

unauthorized

comprehensive

tracking

of

millions

of

Americans. Once Plaintiffs began carrying their cellular phones using
Google’s

Android

Operating

System,

Google

began

tracking

their

locations. This has happened in the past and continues to happen all
across the United States. It is unconscionable to allow Google to
continue unlawfully and without proper consent to extensive tracking
of Plaintiffs and proposed Class members. If Google wanted to track
the whereabouts of each of its products' users, it should have
obtained specific, particularized informed consent such that Google
consumers across America would not have been shocked and alarmed to
learn of Google's practices in recent days.
39. Inadequate remedy at law exists because users of Google’s
Android Operating System have to no way to prevent Google from
collecting this information because even if users disable the GPS
components, Google's tracking system remains functional.
40. Balance of the hardships favors Plaintiffs and the Class
because it is easier for Google to stop unlawfully tracking every
move of Americans than it is for individual consumers to circumvent

9

Google's sophisticated tracking programs. To require that Plaintiffs
and the Class bear the consequences of Google's deceptive privacy
policy and unlawful acquisition of personal location information
would be inequitable.
41. The public has an interest in being able to travel without
being tracked. The public interest would not be disserved, and indeed
would be advanced, by entering injunctions against Defendant. See
eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006).
42. The injunction should require Google to reconfigure its
software so that users' personal location information is neither
collected, nor synced to the Google computers.
COUNT II
(Computer Fraud and Abuse Act, 18 U.S.C. § 1030)
43. Plaintiffs re-allege and incorporate by reference the
allegations contained in the paragraphs above, and those that
come after as if fully set forth here.
44. By secretly installing software that records users'
every moves Google has accessed Plaintiffs' cellular phones,
which are computers, in the course of interstate commerce or
communication,

in

excess

of

the

authorization

provided

by

Plaintiffs as described in the Computer Fraud and Abuse Act (the
"Fraud Act") 18 U.S.C. § 1030(a)(2)©.
45. Plaintiffs' cellular phones and those of the Class, are
protected computers pursuant to 18 U.S.C. § 1030(e)(2)(B).
46. Google further violated the Fraud Act by causing the
transmission of a program, information, code or command - both
10

in deploying the Android operating systems, and also as a result
of the syncing of user handheld devices with Google’s computers and as a result caused harm aggregating at least $5,000 in value.
47.

Google's

actions

were

knowing

or

reckless

and,

as

described above, caused harm to Plaintiffs and proposed Class
members.
48. Plaintiffs seek recovery for this loss, as well as
injunctive and declaratory relief to prevent future harm.
COUNT III
(Unfair or Deceptive Acts in Violation of Each State's Laws)
49. Plaintiffs re-allege and incorporate by reference the
allegations contained in the paragraphs above, and those that
come after as if fully set forth herein.
50. This cause of action is brought by Plaintiffs JULIE
BROWN

and

KAYLA

MOLASKI

pursuant

to

Michigan's

Michigan's

Consumer Protection Act. MCL §§ 445.901 et seq.
51. This cause of action is brought on behalf of Class members
pursuant to each state's unfair or deceptive acts and practices
(UDAP) statutes. The Act of each state follows the Federal Trade
Commission Act and provides for a private cause of action.
52. Plaintiffs and Class members are consumers as defined under
these Acts.
53. The FTC Act prohibits an act or practice that violates
either the standards for "unfairness," or those for "deception" - the
two are independent of each other. An act or practice may be found to
be unfair where it "causes or is likely to cause substantial injury
11

to

consumers

which

is

not

reasonably

avoidable

by

consumers

themselves and not outweighed by countervailing benefits to consumers
or to competition." 15 U.S.C. § 45(n). An act or practice is
deceptive if it is likely to mislead a consumer acting reasonably
under the circumstances.
54. Google's inadequate disclosures made in its privacy policy
were both unfair and deceptive.
55. Google's tracking and obtaining of Plaintiffs and other
users' personal information was both unfair and deceptive because
Google's users had no knowledge of Google's intent or actions.
56. The Consumer Protection Acts of Michigan and the other
states substantially follow the FTC Act.
57.

Google's

privacy

policy

contained

deceptive

misrepresentations that are material and are likely to and did
deceive

ordinary

consumers

acting

reasonably,

including

the

Plaintiffs, into believing that their every move would not be tracked
by Google and then stored for future use in an Google-designed
database.
58. Google's omission of its true intent to track users was
material to terms and conditions under which Plaintiffs and Class
members purchased their cellular phones with the Google Android
Operating System. An act or practice is material if it is likely to
affect a consumer's decision regarding the product. Plaintiffs and
other users would not have purchased Google Android Operating System
products and indeed would have purchased the products of a competitor

12

had they known that their every movement would be tracked and
recorded.
59. Here, Google specifically omitted from its privacy policy
any indication that extensive tracking would occur on products using
their operating system, knowing that such disclosure would prevent
consumers from consummating their purchases.
60. Michigan’s Act declares the acts and omissions of Google to
be unlawful.
61. Google's practices have caused substantial injury to
Plaintiffs and Class members by depriving them of money they would
have spent elsewhere and by covertly delivering software that
tracks users' every movements.
62.

Google's

unfair

omissions

injure

both

consumers

and

competition. Consumers are injured in all the ways that Plaintiffs
have been injured, as described throughout this complaint, and
competition suffers in several ways too: (1) honest companies that
do not covertly track their customers' locations have lost and
continue to lose market share to products using Google’s Android
Operating System; (2) Google is rewarded for its deceit with
billions of dollars in revenues (which should all be disgorged);
and (3) competitors behaving deceptively creates a "race to the
bottom", wherein additional companies feel economic pressure to
similarly track users's whereabouts to later sell and thereby
avoid losing further market share in the rapidly growing and
competitive market for precise consumer demographic, location and

13

other data. There are no countervailing benefits of Google's
conduct: not to consumers, nor to competition.
63. Google violated and continues to violate the Acts of each
state by engaging in the trade practices described above, that has
caused and continues to cause substantial injury to consumers, which
are

not

reasonably

avoidable

by

the

consumers

themselves,

in

transactions with Plaintiffs and the Class which were intended to
result in, and did result in, the sale of the cellular phones with
the Google Android Operating System.
64. There were reasonable alternatives available to further
Google's

legitimate

business

interests,

other

than

the

conduct

described herein. Google, for example, could have abstained from
tracking the exact locations of users of its products. Google also
could have required a single sentence disclosure describing its
rampant covert tracking of individual users' locations to be signed
by purchasers - rather than or in addition to it's confusing,
ambiguous and lengthy privacy terms and conditions.
65. Google's act of tracking its users is misleading in a
material way because Google fails to disclose, or even hint at, the
full extent of its comprehensive user location tracking in the Google
privacy policy terms and conditions. Google's acts have a broad
impact on consumers at large because Google's inadequate disclosures,
coupled with its unlawful tracking continue to impact prospective
purchasers.
66. Plaintiffs and Class members have suffered injury as a

14

result of Google's deceptive acts and omissions because Plaintiffs
would have not bought Google devices had they known that they would
be tracked.
67. Plaintiffs have suffered injury as a direct and proximate
result of Google's deceptive acts, practices and omissions. Injury
includes

Plaintiffs'

purchases

of

their

devices

using

Google’s

Android Operating System. Actual injury to Plaintiffs also includes
the

collection

of

their

private

location

information

and

the

continued existence of databases of that same information - databases
that are unencrypted and potentially accessible to the public.
68.

Google

willfully

and

knowingly

violated

Michigan’s

Michigan's Consumer Protection Act and is therefore subject to three
times the actual damages suffered by Plaintiffs and the Class.
69. Google deceived Plaintiffs and consumers, and treated them
unfairly by tracking their movements as described above, and violated
the Acts of each state by omitting from its privacy policy the full
extent of its tracking:
A.

Alabama's Deceptive Trade Practices Act. Ala. Code §
§ 8-19-1 et seq.;

B.

Alaska's
Unfair
Trade
Practices
and
Consumer
Protection Act. Alaska Stat. §§ 44.50.471 et seq.;

C.

Arizona's Consumer Fraud Act. Ariz. Rev. Stat. §§ 441521 et seq.;

D.

Arkansas's Deceptive Trade Practices Act. Ark. Code §§
4-88-10 I et seq.;

E.

California's Consumer Legal Remedies Act, and also the
Unfair Competition Law. Cal Civ. Code §§ 1750 et seq.,
and Cal. Bus. & Prof. Code §§ 17200 et seq.,
respectively;
15

F.

Colorado's Consumer Protection
Stat. §§ 6-1-101 et seq.;

G.

Connecticut's Unfair Trade Practices Act. Conn.
Gen. Stat. §§ 42- II0a et seq.;

H.

Delaware's Consumer Fraud Act, and also its Uniform
Deceptive Trade Practices Act. Del. Code, Title 6
§§ 2511-2571, 2580-2584, and Title 6 §§ 2531-2536,
respectively;

I.

District of Columbia's Act. D.C. Code §§ 28-3901 et
seq.;

J.

Florida's Deceptive and Unfair Trade Practices Act.
Fla. Stat. §§ 501.201 et seq.;

K.

Georgia's Uniform Deceptive Trade Practices Act,
and also the Fair Business Practices Act. Ga. Code
§§ 10-1-370 et seq., and §§ 10-1- 390 et seq.;

L.

Hawaii's Uniform Deceptive Trade Practices Act.
Haw. Rev. Stat. §§ 480-24 et seq., §§ 484A-I et
seq.;

M.

Idaho's Consumer Protection Act. Idaho Code §§ 48601 et seq.;

N.

Illinois's Consumer Fraud and Deceptive Business
Practices Act, and also its Uniform Deceptive Trade
Practices Act. 815 Ill. Compo Stat. 50511 et seq.,
and 815 Ill. Compo Stat. 510/1 et seq.;

O.

Indiana's Deceptive Consumer Sales Act. Ind. Code
§§ 24-5-0.5-1 et seq.;

P.

Iowa's Act. Iowa Code §§ 714.16 et seq.;

Q.

Kansas's Consumer Protection Act. Kan. Stat. §§ 50623 et seq., 50- 676 et seq.;

R.
S.

Louisiana's Unfair Trade Practices and Consumer
Protection Law. La. Rev. Stat. §§ 51:1401 etseq.;
Maine's Unfair Trade Practices Act, and also its
Uniform Deceptive Trade Practices Act. Me. Rev.
Stat., Title 5 §§ 205-A et seq., and Title 10 §§
1211 et seq., respectively;

T.

Maryland's Consumer Protection Act. Md. Code Com.
16

Act.

Colo.

Rev.

Law §§ 13- 101 et seq.;
U.

Massachusetts's Consumer Protection
Gen. Laws ch. 93A §§ I et seq.;

V.

Michigan's Consumer Protection Act. Mich. Comp
Laws §§ 445.901 et seq.;

W.

Minnesota's Uniform Trade Practices Act, and its
False Statement in Advertising Act, and also its
Prevention of Consumer Fraud Act. Minn. Stat. §§
8.31, 325D.43 et seq., and §§325F.68 et seq.;

X.

Mississippi's Consumer Protection Act. Miss. Code
§§ 75-24-1 et seq.;

Y.

Missouri's Merchandising Practices Act. Mo. Rev.
Stat. §§ 407.010 et seq.;

Z.

Montana's Unfair Trade Practices and Consumer
Protection Act. Mont. Code §§ 30-14-101 et seq.;

AA.

Nebraska's Consumer Protection Act, and also its
Uniform Deceptive Trade Practices Act. Neb. Rev. Stat.
§§ 59-160 I
et seq., and §§ 87-301 et seq.;

BB.

Nevada's Trade Regulation and Practices Act. Nev. Rev.
Stat. §§ 598.0903 et seq., and § 41.6000;

CC.

New Hampshire's Consumer Protection
Rev. Stat. §§ 358-A: I
et seq.;

DD.

New Jersey's Consumer Fraud Act. N.J. Stat. §§ 56:8-1
et seq.;

EE.

New Mexico's Unfair Practices Act. N.M. Stat. §§ 5712-1 et seq.;

FF.

New York's Act. N.Y. Exec. Law § 63(12), N.Y. Gen.
Bus. Law §§ 349 et seq.;

GG.

North Carolina's Act. N.C. Gen. Stat. §§ 75-1.1 et
seq.;

HH.

North Dakota's Consumer Fraud Act. N.D. Cent. Code §§
51-15-01 et seq.;

II.

Ohio's Consumer Sales Practices Act, and also its
Deceptive Trade Practices Act. Ohio Rev. Code §§
1345.01 et seq., and §§ 4165.01 et seq.;
17

Act.

Act.

Mass.

N.H.

JJ.

Oklahoma's Consumer Protection Act, and also its
Deceptive Trade Practices Act. Okla. Stat., Title
15 §§ 751 et seq., Title 78 §§ 51 et seq.,
respectively;

KK.

Oregon's Unlawful Trade Practices Law. Or. Rev.
Stat. §§ 646.605 et seq.;

LL.

Pennsylvania's Unfair Trade Practices and Consumer
Protection Law. 73 Pa. Stat. §§ 201-1 et seq.;

MM.

Rhode Island's Unfair Trade Practices and Consumer
Protection Act. GenLaws §§ 6-13.1-1 et seq.;

NN.

South Carolina's Unfair Trade Practices Act. S.C. Code
§§ 39-5-10 et seq.;

OO.

South Dakota's Deceptive Trade Practices and Consumer
Protection Law. S.D. Cod. Laws §§ 37-24-1 et seq.;

PP.

Tennessee's Consumer Protection Act. Tenn. Code §§ 4718-101 et seq.;

QQ.

Texas's
Deceptive
Trade
Practices
Consumer
Protection Act. Tex. Bus. & Com. Code §§ 17.41 et
seq.;

RR.

Utah's Unfair Practices Act, and its Consumer Sales
Practices Act, and also its Truth in Advertising
Act. Utah Code §§ 13-2-1 et seq., 13-5-1 et seq.,
and §§ 13-11-1 et seq., and also §§ 13-1 la-I et
seq., respectively;

SS.

Vermont's Consumer Fraud Act. Vt. Stat., Title 9 §§
2451 et seq.;

TT.

Virginia's Consumer Protection Act. Va. Code §§ 59.1196 et seq.;

UU.

Washington's Consumer Protection Act. Wash. Rev.
Code §§ 19.86.010 et seq.;

VV.

West Virginia's Consumer Credit and Protection Act. W.
Va. Code §§ 46A-6-101 et seq.;

WW.

Wisconsin's Deceptive Trade Practices Act. Wis. Stat.
§§ 100.18 et seq.;

XX.

Wyoming's Consumer Protection Act. Wyo. Stat. §§ 4018

12-101 et seq.; and
YY.

the equivalent and applicable laws in the other
remaining U.S. territories.
70. Google is liable for attorney's fees and reasonable costs if
Plaintiffs and Class members prevail.
71. Plaintiffs also seek punitive damages.
72. Plaintiffs seek a declaratory judgment.
73. Violations of the relevant computer laws, both federal and
state, also serve as a predicate for violations of these UDAP laws.
74. Plaintiffs and the Class reserve the right to allege other
violations oflaw which constitute other unlawful business acts or
practices. Such conduct is ongoing and continues to this date.
COUNT IV
(Fraudulent, Intentional Misrepresentation)
75.

Plaintiffs

re-allege

and

incorporate

by

reference

the

allegations contained in the paragraphs above, and those that come
after as if fully set forth herein.
76. Google represented to Plaintiffs and Class members that it
would

not

collect

information

about

their

every

movement

and

location, and omitted disclosing this to Plaintiffs.
77. Google not only knew that its privacy terms and conditions
policy was, and continues to be, false, deceptive and untrue, by
omitting that Google will track users, but Google also intended for
Plaintiffs and Class members to rely on its deceptive statements.
78. Google's fraud is comprised both the omissions of proper
disclosures to its users and to its illegal tracking of their
movements.
19

79. Plaintiffs and Class members did not know about Google's
omissions.
80. Plaintiffs and Class members did not know that Google has
been extensively tracking their movements.
81. Plaintiffs and Class members, acting as ordinary consumers,
reasonably relied on Google's representations. Plaintiffs had a right
to rely on Google's representations. Plaintiffs and Class members'
reliance on Google's omissions was a substantial factor in causing
their harm. Google's tracking of users was and is material, and
Plaintiffs and Class members reasonably believed that their every
movement would not be tracked.
82. Plaintiffs and Class members were damaged in the amount of
money paid to purchase products with Google's Android Operating
System.
83. Plaintiffs and the Class seek punitive damages from Google.
84. Google had and continues to have a duty of good faith, which
implicitly includes a duty not to deceive consumers, and also not to
conduct this sort of covert digital surveillance on consumers.
COUNT V
(Negligent Misrepresentation)
85.

Plaintiffs

re-allege

and

incorporate

by

reference

the

allegations contained in the paragraphs above, and those that come
after as if fully set forth herein.
86. Google omitted a material fact - that purchasers would be
tracked at all times - during its sale of cellular phones with the
Android Operating Systems.
20

87. Google was negligent in making the omission because it
should

have

known

that

whether their

every

movements

would

be

tracked, recorded and stored for later use was material to consumers.
88. Google, in making that omission intended, or expected, that
Plaintiffs and Class members would rely on the omission.
89. Plaintiffs justifiably relied on Google's omissions about
its tracking of purchasers, and would not have purchased products
using

Google's

Android

Operating

System

but

for

the

omission.

Plaintiffs were damaged in amounts equal to the price they paid for
their products using Google’s Android Operating System.
90.

Google's

omissions

were

material

and

directly

and

proximately caused ordinary consumers acting reasonably, Plaintiffs
and Class members included, to buy the phones with Android Operating
System products. Without Google's omissions of its covert intentions,
the products would not have been purchased, and Plaintiffs would not
have suffered damages.
91. Plaintiffs seek punitive damages from Google.
PRAYER FOR RELIEF
92. WHEREFORE Plaintiffs pray for judgment against Google as
follows:
A.

For an order certifying the Class defined herein,
appointing undersigned counsel as Class Counsel,
approving Plaintiffs as Class representatives, and
requiring that notice be provided to the Class at
Google's expense, pursuant to Fed. R. Civ. P. 23;

B.

For declaratory and injunctive relief, including
enjoining Google from continuing to omit its true
intentions about tracking purchasers of its
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products, and requiring Google to stop tracking its
products' users;
C.

For judgment on behalf of the Class as defined
herein for an amount to adequately compensate them
for
damages
described
herein
in
excess
of
$50,000,000.00;

D.

For exemplary, treble or punitive damages;

E.

For reasonable attorneys' fees and costs; and

F.

For such other and further relief as this Court
deems equitable or just under the circumstances.
DEMAND FOR JURY TRIAL

Plaintiffs, on behalf of themselves and all others similarly
situated, hereby demand a trial by jury on all issues so triable
against Google.
Respectfully Submitted,
by s/Steven T. Budaj
STEVEN T. BUDAJ, P.C.
By Steven T. Budaj (P-30154)
Paul M. Hughes (P-36421)
Donald J. Andrews (P-48501)
[e-mail]
Attorneys for Plaintiffs
65 Cadillac Square, Suite 2915
Detroit, MI 48226
[phone]
Dated:

April 27, 2011

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