Burdick et al v. Google Inc et al

Filing 1

COMPLAINT against All Defendants filed by Jacqueline Burdick(Individually ), Jacqueline Burdick(on Behalf of All Others Similarly Situated). (Attachments: # 1 Civil Cover Sheet). (cpp)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
JACQUELINE BURDICK,
Individually and on Behalf of All
Others Similarly Situated,
Plaintiffs,
Case No: CIV-12-332-C

v.
GOOGLE, INC
Serve at:
1600 Amphitheatre Parkway
Mountain View, CA 94043221

JURY TRIAL DEMANDED

DOES 1 THROUGH 10,
Defendants.
CLASS ACTION COMPLAINT
Plaintiff, on behalf of herself and all others similarly situated, alleges and avers as
follows:
INTRODUCTION
1.

This class action arises out of improper and unlawful actions by the Defendants who
participated in a scheme to intercept, endeavor to intercept, or procure the Plaintiff and
the Class members’ electronic communications as prohibited by law.

2.

Plaintiff and the Class members are individuals who were members of Google Plus.

3.

Google Plus maintains personal information pertaining to each individual as well as
monitors the individual online habits of its users keeping track of websites they visit.

4.

Upon obtaining personal information and/or wire or electronic communications of the
Plaintiff, Google conspired to use said information for targeted marketing which

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pertained to the Plaintiff and the individual Class members, over the Internet.
5.

Such conduct was committed in violation of Title III of the Omnibus Crime Control and
Safe Streets Act of 1968 as amended by the Electronic Communication Privacy Act of
1986, 18 U.S.C. § 2511, et seq. (the “Wiretap Act”).
PARTIES
Plaintiffs

6.

Plaintiff, Jacqueline Burdick, is an individual who resides in Canadian County, State of
Oklahoma. Upon information and belief, Defendants intercepted, collected and stored
personal information from Plaintiff.
Defendants

7.

Defendant is a company organized and existing under the laws of Delaware with its
principal place of business at 1600 Amphitheatre Parkway, Mountain View, CA 94043.
Upon information and belief, Google is not registered with the Oklahoma Secretary of
State to do business in Oklahoma.

8.

Defendants Doe 1 through 10 are the remaining directors, employees, agents, or
contractors of Google that are yet to be named and whose identity will become known
through discovery and/or by requests made by Plaintiff or the members of the plaintiff
class, after which such remaining defendants will be added as individual defendants.
JURISDICTION AND VENUE

9.

This Court has jurisdiction over this action and all the defendants pursuant to 28 U.S.C. §
1331 in that this action arises under statutes of the United States, specifically violations
of the “Wiretap Act”.

10.

Additionally, this Court has personal jurisdiction over Defendant Google, Inc. pursuant

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to Title 12 Okla. Stat. §2004, since Google, Inc. transacted business in Oklahoma,
violated the law within the State of Oklahoma, and otherwise has sufficient minimum
contacts with the State of Oklahoma as more particularly described below.
11.

Defendant Google, Inc. has sufficient minimum contacts such that the maintenance of
this suit does not offend traditional notions of fair play and substantial justice. Google
has voluntarily submitted itself to the jurisdiction of this Court and jurisdiction is proper
because, among other things:
a.

Google, Inc. directly and purposefully obtained, misappropriated and used
information relating to wire or electronic communications of individuals living in
Oklahoma, including the Plaintiff and the individual Class members;

b.

Google, Inc. committed tortious acts within this state by misappropriating
personal information and/or wire or electronic communications of citizens of
Oklahoma and otherwise violating the Wiretap Act;

c.

Plaintiff’s and the Class members’ causes of action directly arise from Google’s
commission of tortious and unlawful acts in Oklahoma;

d.

Plaintiff’s and the Class members’ causes of action directly arise from Google’s
transaction of business in Oklahoma;

e.

Google, Inc. should reasonably anticipate being haled into court in Oklahoma to
answer for its unlawful acts. Oklahoma has a strong interest in providing a forum
for its residents aggrieved by violations of the law.

12.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(c) because a substantial
amount of the acts and omissions giving rise to this cause of action occurred in the
Western District of Oklahoma.

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GENERAL ALLEGATIONS
13.

Defendant Google, Inc. operates a website, www.google.com, which includes a subdomain that serves as a social networking site found at plus.google.com.

14.

In conducting its business, Google, Inc. aggregates data on individual members of the
public and uses that information in furtherance of marketing and advertising.

15.

Google tracks, collects and stores wire or electronic communications of its Google Plus
users, including but not limited to their Internet browsing history.

16.

Leading up to February 2012, Google tracked, collected and stored its users’ wire or
electronic communications, including but not limited to portions of their Internet
browsing history even when the users were using their Safari browsers with settings
intended to block tracking user activity across the Internet.

17.

Plaintiff did not give consent or otherwise authorize Google to intercept, track, collect
and store her wire or electronic communications while using her Safari browser with
settings intended to block the tracking of her activity across the Internet.

18.

The electronic information procured by Google, Inc. while Plaintiff was using her Safari
browser with settings intended to block the tracking of her activity across the Internet
contained personal information and/or wire or electronic communications of the Plaintiff.

19.

At all times material, Defendants knew, or reasonably should have known, that their
actions violated clearly established statutory rights of the Plaintiff and the Class
members.
CLASS ACTION ALLEGATIONS

20.

This action is properly brought as a plaintiff class action pursuant to Fed. R. Civ. P.
23(b)(3). Plaintiff brings this action on her own behalf and all others similarly situated,

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as representative of the following class and subclass:
All individuals in the United States who subscribe to Google+ and signed
into Google+ using the Safari web browser with settings intended to block
the tracking of activity across the Internet and whose electronic internet
information was intercepted by Google without their consent by Google’s
actions to bypass Safari privacy settings.
Excluded from the Class is any individual defendant who opts out of the class.
21.

The particular members of the Class are capable of being described without difficult
managerial or administrative problems.

The members of the Class are readily

identifiable from the information and records in the possession or control of the
defendants.
22.

The Class members are so numerous that individual joinder of all members is
impractical.

This allegation is based upon information and belief that Defendant

intercepted the personal information of millions of Google Plus users of which the
company has claimed 62 million users as of December 27, 2011.
23.

There are questions of law and fact common to the Class, which questions predominate
over any questions affecting only individual members of the Class, and, in fact, the
wrongs suffered and remedies sought by Plaintiff and the other members of the Class are
premised upon an unlawful scheme participated in by all defendants. The principal
common issues include, but are certainly not limited to the following:
a.

The nature and extent of the Defendant’s participation in intercepting the and/or
wire or electronic communications of class members;

b.

Whether or not the interception of wire or electronic communications was
intentional;

c.

Whether or not Defendant should be enjoined from intercepting any wire or

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electronic communications without the consent of its users;
d.

Whether the actions taken by Defendant in intercepting the wire or electronic
communications of class members violate the Wiretap Act and/or 42 U.S.C. §
1983;

e.

The nature and extent to which the wire or electronic communications of Class
members was unlawfully intercepted, tracked, stored or used;

f.

The nature and extent of the Class members damages;

g.

The nature and extent of all statutory penalties or damages for which the
Defendant are liable to the Class members; and

h.
24.

Whether punitive damages are appropriate.

Plaintiff’s claims are typical of those of the Class and are based on the same legal and
factual theories.

25.

Plaintiff will fairly and adequately represent and protect the interests of the Class. She
has suffered injury in her own capacity from the practices complained of and is ready,
willing and able to serve as class representative.

Moreover, Plaintiff’s counsel is

experienced in handling class actions and actions involving unlawful commercial
practices. Neither Plaintiff nor her counsel has any interest that might cause them not to
vigorously pursue this action.
26.

Certification of a plaintiff class under Fed. R. Civ. P. 23(b)(3) is appropriate in that
Plaintiff and the Class members seek monetary damages, common questions predominate
over any individual questions, and a plaintiff class action is superior for the fair and
efficient adjudication of this controversy. A plaintiff class action will cause an orderly
and expeditious administration of the Class members’ claims and economies of time,

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effort and expense will be fostered and uniformity of decisions will be ensured.
Moreover, the individual class members are unlikely to be aware of their rights and not
in a position (either through experience or financially) to commence individual litigation
against the likes of the defendants.
27.

Alternatively, certification of a plaintiff class under Fed. R. Civ. P. 23(b)(1) is
appropriate in that inconsistent or varying adjudications with respect to individual
members of the Class would establish incompatible standards of conduct for the
defendants or adjudications with respect to individual members of the Class as a practical
matter would be dispositive of the interests of the other members not parties to the
adjudications or would substantially impair or impede their ability to protect their
interests.
COUNT I
(Violation of the Wiretap Act)

28.

Plaintiff incorporates all preceding paragraphs as though fully set forth herein.

29.

As described herein, Google, Inc. intentionally intercepted and collected wire or
electronic communications from its users.

30.

At times, Google, Inc. intercepted and collected information from its Google Plus users
without their consent while the users were using their Safari browsers with settings
intended to block tracking user activity across the Internet.

31.

The transmission of data between Plaintiff’s computer or other devices and the Internet
constitutes “electronic communication” within the meaning of 18 U.S.C. § 2510(12).

32.

Google’s data collection practices as described herein constitute “interceptions” within
the meaning of § 2510(4).

33.

As a direct and proximate result of such unlawful conduct, Defendants violated 18
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U.S.C. § 2511 in that Defendant:
a. Intentionally intercepted, endeavored to intercept, or procured another person
to intercept wire and/or electronic communications of the Plaintiff;
b. Upon belief predicated upon further discovery, intentionally disclosed or
endeavored to disclose to another person the contents of Plaintiff’s wire or
electronic communications, knowing or having reason to know that the
information was obtained through the interception of wire or electronic
communications in violation of 18 U.S.C. §2511(1)(a).
c. Upon belief predicated upon further discovery, intentionally used or
endeavored to use the contents of Plaintiff’s wire or electronic
communications, knowing or having reason to know that the information
through the interception of wire or electronic communications in violation of
18 U.S.C. §2511(1)(a).
34.

Google, Inc.’s actions described herein occurred without the consent of Plaintiff and
violated Google own instructions to users regarding Advertising Opt-Out Plug-Ins for
Safari browsers, which stated the following, in pertinent part, prior to February 14, 2012:
Instructions for Safari
While we don’t yet have a Safari version of the Google advertising cookie
opt-out plugin, Safari is set by default to block all third-party cookies. If
you have not changed these settings, this option effectively accomplishes
the same thing as setting the opt-out cookie.

35.

Upon information and belief, Google, Inc.’s actions described herein occurred without
the consent of the websites from which Google surreptitiously, intentionally, and without

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consent placed tracking cookies on Plaintiffs’ computer and other web-surfing devices.
These sites include, but are not limited to Yellow-Pages.com, owned by AT&T.
36.

Google, Inc.’s actions described herein were for the purpose of committing tortious acts
in violation of the laws of the United States and Oklahoma. In taking its actions, Google,
Inc. committed the following tortious acts alleged in this petition:
a. Unjust enrichment;
b. Invasion of privacy (intrusion upon plaintiff’s seclusion);

37.

As a result of the above violations and pursuant to 18 U.S.C. § 2520, Defendants are
liable to Plaintiff and the Class in the sum of statutory damages consisting of the greater
of $100 for each day each of the class members’ data was wrongfully obtained or
$10,000 per violation; injunctive and declaratory relief; punitive damages in an amount
to be determined by a jury, but sufficient to prevent the same or similar conduct by
Google in the future, and a reasonable attorney’s fee and other litigation costs reasonable.
COUNT II
(Unjust enrichment)

38.

Plaintiff incorporates all preceding paragraphs as though fully set forth herein.

39.

Plaintiff conferred a benefit on Defendant without Plaintiff’s consent, namely access to
her wire or electronic communications over the Internet.

40.

Upon information and belief, Defendant realized such benefits through either sales to
third-parties or greater knowledge of its own users’ behavior without their consent.

41.

Acceptance and retention of such benefit without Plaintiff’s consent is unjust and
inequitable.

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COUNT III
(Intrusion upon seclusion)
42.

Plaintiff incorporates all preceding paragraphs as though fully set forth herein.

43.

In surreptitiously and without consent intercepting Plaintiff’s wire and electronic
communications on the Internet by bypassing his Safari privacy settings, Defendants
intentionally intruded upon her solitude or seclusion.

44.

Plaintiff did not consent to Defendant’s intrusion.

45.

Defendant’s intentional intrusion on Plaintiff’s solitude or seclusion without her consent
would be highly offensive to a reasonable person.
PRAYER FOR DAMAGES
WHEREFORE, Plaintiff, on behalf of herself and all members of the Class respectfully

prays for judgment against the defendants as follows:
a)

For an order certifying that this action may be maintained as a class action under Fed. R.
Civ. P. 23(b)(3) or, in the alternative, Fed. R. Civ. P. 23(b)(1) and appointing Plaintiff
and her counsel, to represent the Class and directing that reasonable notice of this action
be given to all other members of the Class as necessary and appropriate;

b)

For a declaration that the Defendants’ actions violated the 18 U.S.C. 2511 et seq.;

c)

For a declaration that the Defendants, through their actions and misconduct as alleged
above, have been unjustly enriched and an order that Defendants disgorge such unlawful
gains and proceeds

d)

For all actual damages, statutory damages, penalties, and remedies available for the
defendants’ violations of 18 U.S.C. 2511 et seq;

e)

That judgment be entered against Defendant for statutory damages pursuant to 18 U.S.C.
2520(c)(2)(B);
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f)

That judgment be entered against Defendant for statutory damages pursuant to 18 U.S.C.
2520(b)(2);

g)

That Plaintiff and the Class recover pre-judgment and post-judgment interest as permitted
by law;

h)

For an award to Plaintiff and the Class of their reasonable attorneys fees and other
litigation costs reasonably incurred pursuant to 18 U.S.C. 2520(b)(3);

i)

That the court enter an order granting Plaintiff and the Class a preliminary and permanent
injunction restraining and enjoining Defendant from any act to intercept electronic
information from its users when they are not logged-in and from disclosing any of the
information already acquired on its servers;

j)

That the Court grant such other and further relief as may be just and proper;
JURY DEMAND
Plaintiff demands that all issues so triable in this Complaint be tried to a jury.
Dated this 27th day of March, 2012.

Respectfully submitted,
s/Henry A. Meyer, III
Henry A. Meyer, III, OBA #6163
MEYER, LEONARD & ALLISON, PLLC
116 E. Sheridan, Suite 207
Oklahoma City, OK 73104
Telephone: [phone]
Facsimile: 405-605-8381
Email: [e-mail]
Attorneys for Plaintiff

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