Fryar v. Viacom, Inc. et al.

Filing 3

AMENDED CLASS ACTION COMPLAINT with JURY DEMAND against All Plaintiffs filed by Stephanie Fryar.(Voyles, Adam)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTIRCT OF TEXAS
STEPHANIE FRYAR, as Next Friend
of the Minor Children,
JOHNNY DOE #1 AND
JOHNNY DOE #2
v.
VIACOM, INC.
Serve at:
1515 Broadway
New York, New York 10036
and
GOOGLE, INC.
Serve at:
1600 Amphitheatre Parkway
Mountain View, CA 94043

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Case No. 4:12-cv-03713

AMENDED CLASS ACTION COMPLAINT

STEPHANIE FRYAR, as Next Friend of the Minor Children, JOHNNY DOE #1
and JOHNNY DOE #2, on behalf of themselves and all others similarly situated, by and
through undersigned counsel, upon knowledge as to themselves and otherwise upon and
information and belief, allege as follows:
NATURE OF THE CASE
1.

This is a class-action lawsuit brought by plaintiffs on behalf of all similarly

situated minor children under the age of 13 and their guardians to enforce the privacy rights of
children under the age of 13 on the Internet. Defendants Viacom and Google, through the
conduct described hereinafter, violated those rights.

AMENDED CLASS ACTION COMPLAINT

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2.

Defendant Viacom operates the websites www.nick.com, www.nickjr.com and

www.neopets.com.
3.

Plaintiffs and the putative class are children under the age of 13 who visited the

Viacom websites www.nick.com, www.nickjr.com and www.neopets.com whose privacy rights
Defendants violated by way of unauthorized tracking of their Internet communications and video
viewing habits via cookies placed on their computers at those websites.
4.

Upon obtaining information on the plaintiffs’ communications and web activities,

the Defendants conspired to use and profit from said information for targeted marketing directed
at the plaintiffs and the individual class members over the Internet.
5.

As set forth below, the plaintiffs and others similarly situated, suffered invasions

of privacy in direct violation of federal law, when Viacom and Google developed, implemented,
and profited from cookies designed to track the Internet communications and video viewing
habits of minor children under the age of 13.
6.

The Defendants’ willful and knowing actions violated 18 U.S.C. § 2710 (Video

Privacy Protection Act) and 18 U.S.C. § 2510, et seq. (Wiretap Act),

In addition, the

Defendants’ conduct gives rise to the tort of intrusion upon seclusion and a claim for unjust
enrichment.
PARTIES
7.

Plaintiff, JOHNNY DOE #1 is a minor child under the age of 13 residing in

Cypress, Texas who is registered to use the websites www.nick.com, www.nickjr.com, and
www.neopets.com.

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8.

Plaintiff, JOHNNY DOE #2 is a minor child under the age of 13 residing in

Cypress, Texas who is registered to use the websites www.nick.com, www.nickjr.com, and
www.neopets.com.
9.

Plaintiffs created a profile on the websites www.nick.com, www.nickjr.com, and

www.neopets.com.
10.

Plaintiffs also have requested and obtained video materials on the websites

www.nick.com, www.nickjr.com, and www.neopets.com.
11.

Defendant Viacom, Incorporated is a publicly traded Delaware corporation which

does business in the State of Texas, the United States and throughout the world. Defendant
Viacom maintains its principal place of business in New York and may be served with process
by serving its registered agent, Corporation Service Company d/b/a CSC – Lawyers
Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218.
12.

Defendant Google, Incorporated is a publicly traded Delaware corporation which

does business in the State of Texas, the United States and throughout the world. Defendant
Google maintains its principal place of business in the state of California and may be served with
process by serving its registered agent, Corporation Service Company dba CSC – Lawyers
Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas 78701-3218.

JURISDICTION AND VENUE
13.

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 18 U.S.C. § 2710 (Video Privacy Protection Act) and 18 U.S.C. § 2510, et seq. (Wiretap Act).
Additionally, this Court has personal jurisdiction over the Defendants since the Defendants
transacted business in Texas, violated the law within the state of Texas, and otherwise have

AMENDED CLASS ACTION COMPLAINT

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sufficient minimum contacts with the state of Texas such that the maintenance of this suit does
not offend traditional notions of fair play and substantial justice. Specifically, the Defendants
have voluntarily submitted themselves to the jurisdiction of this Court and jurisdiction is proper
because, among other things:
a.

All Defendants directly and purposefully obtained, misappropriated and used

information relating to wire or electronic communications of individuals living in Texas,
including the Plaintiffs and the individual Class members;
b.

All Defendants committed tortious acts within the state of Texas by

misappropriating personal information, including but not limited to video viewing habits,
and/or wire or electronic communications of citizens of Texas and otherwise violating the
Video Privacy Protection Act and Wiretap Act;
c.

Plaintiffs’ and the class members’ causes of action directly arise from the

Defendant’s commission of tortious and unlawful acts in Texas;
d.

Plaintiffs’ and the Class members’ causes of action directly arise from the

Defendants’ transaction of business in Texas;
e.

By virtue of their activities in Texas, the Defendants should reasonably anticipate

responding to civil actions filed in Texas to answer for their unlawful acts, and Texas has
a strong interest in providing a forum for its residents aggrieved by violations of federal
law.
14.

Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) because a

substantial part of the events and omissions giving rise to this cause of action occurred in the
Southern District of Texas.

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GENERAL ALLEGATIONS
15.

The

plaintiffs

were

users

of

the

Viacom

websites

www.nick.com,

www.nickjr.com and www.neopets.com.
16.

The plaintiffs are minor children under the age of 13.

17.

Nick.com is a website with a target audience of children.

18.

NickJr.com is a website with a target audience of children.

19.

NeoPets.com is a website with a target audience of children.

20.

Upon

the

plaintiffs’

visits

to

www.nick.com,

www.nickjr.com

and

www.neopets.com, Defendant Viacom placed Internet “cookies” on the plaintiffs’ computers
which tracked their communications both to the website visited and other websites on the
Internet.
21.

Upon

the

plaintiffs’

visits

to

www.nick.com,

www.nickjr.com

and

www.neopets.com, Defendant Google placed Internet “cookies” on the plaintiffs’ computers
which tracked their communications both to the website visited and other websites on the
Internet.
22.

Immediately upon the plaintiffs visitingwww.nick.com, www.nickjr.com and

www.neopets.com, Google.com placed a doubleclick.net cookie named “id” on plaintiffs’
computer.
23.

Google Inc., through its relationship with Viacom, uses the “id” cookie to track

the electronic communications of the plaintiffs, including but not limited to websites visited by
the plaintiffs.

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24.

Additionally, Viacom knowingly permits Google to use the “id” cookie to track

video materials requested and obtained from www.nick.com and www.nickjr.com by the
plaintiffs.
25.

Google Inc., through its relationship with Viacom, uses the “id” cookie to track

video materials requested and obtained from Nick.com, NickJr.com and NeoPet.com by the
plaintiffs.
26.

Javascript code is used to place the “id” cookie, which provides Google access to

all information obtained through the first-party cookies placed by Defendant Viacom on the
plaintiffs’ computers.
27.

Defendant Google’s website informs potential ad buyers that it can identify web

users with Google’s doubleclick.net cookies: “For itself, Google identifies users with cookies
that belong to the doubleclick.net domain under which Google serves ads. For buyers, Google
identifies users using a buyer-specific Google User ID which is an obfuscated version of the
doubleclick.net cookie,

derived from but not equal to that cookie.” Current at

https://developers.google.com/ad-exchange/rtb/cookie-guide as of September 28, 2012.
28.

Defendant Viacom allowed visitors of www.nick.com to create user accounts via

a “Join the Club” link on the site’s homepage.
29.

Defendant Viacom’s form for the creation of a user account included a question

asking users for their birthdate.
30.

As a result, Defendant Viacom knows the age of its users who have accounts at

www.nick.com, and specifically knows which of its users are under the age of 13.
31.

After a user creates an account, Defendant Viacom creates a unique identifier

through the user’s chosen “Nickname/Display Name” of between 3 to 10 characters.

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32.

After receiving an application from a user who is a minor under the age of 13,

Defendant Viacom does not attempt to gain permission or otherwise inform the parent or
guardian of the minor under the age of 13 that the minor under the age of 13 has created an
account.
33.

Defendant Google’s cookies include code described in ¶26 which allow it to

determine the age of users logged-in to www.nick.com.
34.

Defendant Viacom knowingly permits Google to place its doubleclick.net “id”

cookie on the computer of minor children under the age of 13 even after those children have
informed Defendant Viacom through the sign-up process that they were minors under the age of
13.
35.

The doubleclick.net “id” cookie remains on the computers of minor children

under the age of 13 even after those children have informed Defendant Viacom through the signup process that they were minors under the age of 13.
36.

Defendant Google uses its doubleclick.net “id” cookie to, among other things:

a.

Keep records of the plaintiffs’ Internet communications and use;

b.

Keep records of the video materials requested and obtained on www.nick.com

and www.nickjr.com by the plaintiffs;
c.

Use the records of tracking data it receives regarding each plaintiff to sell targeted

advertising to them based on their individualized web usage communications, and videos
requested and obtained.
37.

Defendant Viacom discloses the videos requested and obtained by the plaintiffs

from the websites www.nick.com, www.nickjr.com and www.neopets.com by permitting Google
to use the doubleclick.net “id” cookie on video pages on those websites.

AMENDED CLASS ACTION COMPLAINT

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CLASS ALLEGATIONS
38.

This action is properly brought as a plaintiff class action pursuant to Fed. R. Civ.

P. 23(b) (2) and (3). Plaintiff, STEPHANIE FRYAR brings this action on behalf of her minor
children under the age of 13 and all others similarly situated, as representative of the following
class and subclass:

U.S. Resident Class: All minor children under the age of 13 in the United
States who accessed www.nick.com or www.nickjr.com or www.neopet.com and
on whose computers defendant Viacom and defendant Google placed Internet
cookies which tracked their Internet use and communications.
Video subclass: All minor children under the age of 13 in the United
States who accessed www.nick.com or www.nickjr.com or neopet.com and
engaged with one or more video materials which defendant Viacom knowingly
allowed defendant Google to track by placing Internet cookies on those users’
computers.

39.

Plaintiffs, JOHNNY DOE #1 and JOHNNY DOE #2 meet the requirements of

both the class and video subclass.
40.

The particular members of these classes and subclasses are capable of being

described without difficult managerial or administrative problems. The members of the classes
and subclasses are readily identifiable from the information and records in the possession or
control of the defendants.
41.

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

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Internet communications and tracked the video viewing habits of millions of www.nick.com and
www.nickjr.com users.
42.

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 Plaintiffs 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 not limited to, the following:
a.

The nature and extent of the Defendant’s participation in intercepting wire or

electronic communications of class members;
b.

Whether or not the interception of wire or electronic communications was

intentional;
c.

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

electronic communications without the consent of its users;
d.

Whether the actions taken by Defendants in intercepting the wire or electronic

communications of class members violate the Wiretap Act;
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 to which defendant Viacom disclosed the video material its

users requested and obtained to defendant Google;
g.

The nature and extent to which personally identifiable information, in the form of

video materials requested and obtained by Viacom website users, was unlawfully
disclosed by Viacom;
h.

Whether the actions taken by Defendant Viacom violate the Video Privacy

AMENDED CLASS ACTION COMPLAINT

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Protection Act;
i.

Whether the Defendants intruded upon the plaintiffs’ seclusion;

j.

The nature and extent of all statutory penalties or damages for which the

Defendant are liable to the Class members; and
k.

Whether punitive damages are appropriate.

43.

Plaintiffs’ claims are typical of those of the Class and are based on the same legal

and factual theories.
44.

Plaintiffs, by and through their Next Friend, will fairly and adequately represent

and protect the interests of the class. Plaintiffs have suffered injury in their own capacity from
the practices complained of and are ready, willing and able to serve as class representatives.
Moreover, Plaintiffs’ counsel is experienced in handling class actions and actions involving
unlawful commercial practices, including actions involving the invasion of privacy rights on the
Internet. Neither Plaintiffs nor their counsel has any interest that might cause them not to
vigorously pursue this action. Plaintiffs’ interests coincide with, and are not antagonistic to,
those of the Class members they seek to represent.
45.

Certification of a class under Fed. R. Civ. P. 23 (b) (2) is appropriate because the

Defendants have acted on grounds that apply generally to the class so that final injunctive relief
is appropriate respecting the class as a whole.
46.

Certification of a plaintiff class under Fed. R. Civ. P. 23(b)(3) is appropriate in

that the plaintiffs 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, effort and

AMENDED CLASS ACTION COMPLAINT

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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 these defendants.
47.

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
(Plaintiffs v. Defendant Viacom, Inc. and Defendant Google, Inc.)
48.

Plaintiffs incorporate all preceding paragraphs as though fully set forth herein.

49.

As described herein, Defendants intentionally intercepted and collected the

electronic communications of minor children under the age of 13 who were users of
www.nick.com and www.nickjr.com through the use of a device.
50.

The Defendants placed cookies on the plaintiffs’ computers which were designed

to track and record each individual plaintiff’s web usage and communications, including, but not
limited to their browsing histories.
a.

Defendant Google placed the doubleclick.net “id” cookie on plaintiffs’ computers

before each individual user created an account or logged-in to the respective websites
with target audiences of children.
b.

Defendant Google’s doubleclick.net “id” cookie remained on plaintiffs’

computers after individual users who were minor children under the age of 13 created an
account or logged-in and informed Defendant Viacom that they were minor children

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under the age of 13.
c.

Defendant Google’s doubleclick.net “id” cookie is capable of determining each

individual user’s response to Defendant Viacom’s “birthdate” question in the form
necessary to create a user account and collects information about the user’s age via code.
51.

The Google doubleclick.net “id” cookie tracked and recorded the web usage and

communications of the plaintiffs simultaneous to, and, in some cases, before plaintiffs
communications with third-parties were consummated such that the tracking and recording was
contemporaneous with the plaintiffs’ communications and while the communications were intransit.
52.

The transmission of data between plaintiffs’ computer or other devices and the

Internet are “electronic communications” within the meaning of 18 U.S.C. § 2510(12).
53.

The following constitute “devices” within the meaning of 18 U.S.C. §2510(5):

d.

Each individual cookie the Defendants used to track plaintiffs’ communications;

e.

The plaintiffs’ browsers which the Defendants used to place and extract data from

the individual cookies;
f.

The plaintiffs’ computers;

g.

The Defendants’ web servers; and

h.

The plan or scheme the Defendants carried out to effect their purpose of tracking

the electronic communications of minor children.
54.

The plaintiffs, minor children under the age of 13, did not, and, as a matter of law,

could not have consented to the tracking of their web usage and communications.
55.

The plaintiffs’ legal guardians did not consent to the tracking of their web usage

and communications.

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56.

Neither Defendant Viacom nor Defendant Google attempted to obtain the

permission of the parents or guardians of the plaintiffs or other minor children under the age of
13 whose electronic communications were tracked via cookies.
57.

Defendant Viacom, as a matter of law, could not have consented to the tracking of

the web usage and communications of minor children under the age of 13 using their websites.
58.

Defendant Viacom and Defendant Google’s actions were done for the tortious

purpose of intruding upon the plaintiffs’ seclusion as set forth in Count III of this Petition.
59.

As a direct and proximate result of such unlawful conduct, Defendants violated 18

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 plaintiffs;
b.

Upon belief predicated upon further discovery, intentionally disclosed or

endeavored to disclose to another person the contents of Plaintiffs’ 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); and
c.

Upon belief predicated upon further discovery, intentionally used or endeavored

to use the contents of Plaintiffs’ 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).
60.

As a result of the above violations and pursuant to 18 U.S.C. § 2520, Defendants

are liable to Plaintiffs 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

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violation, whichever is greater; 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 the
Defendants in the future, and a reasonable attorney’s fee and other reasonable litigation costs.
COUNT II – VIOLATION OF THE VIDEO PRIVACY PROTECTION ACT
(Plaintiffs v. Defendant Viacom, Inc.)
61.

Plaintiffs incorporate all preceding paragraphs as though fully set forth herein.

62.

The Video Privacy Protection Act, 18 U.S.C. §2710, referred to as the “VPPA,”

regulates disclosure of records concerning the rental, sale or delivery of prerecorded video
cassette tapes or similar audiovisual materials.
63.

The VPPA makes it unlawful for a video service provider to “knowingly

disclose[s] personally identifiable information concerning any consumer of such provider.”
a.

As defined in 18 U.S.C. §2710(a)(3), “personally identifiable information” is that

which “identifies a person as having requested or obtained specific video materials or
services from a video tape service provider.”
b.

As defined in 18 U.S.C. §2710(a)(4), a “video tape service provider” is “any

person, engaged in the business, in or affecting interstate or foreign commerce, of rental,
sale or delivery of prerecorded video cassette tapes or similar audiovisual materials.”
64.

Defendant Viacom is a “video tape service provider” within the meaning of 18

U.S.C. §2710(a)(4) because it is a person engaged in the business of the delivery of prerecorded
video cassette tapes or similar audio visual materials as defined by the VPPA, in that:
a.

The home page of www.nick.com advertises it as the place to watch “2000+

FREE ONLINE VIDEOS.” The home page prominently features a rotating section
offering users the opportunity to click and watch various videos. In addition, two of the
first three links in the top bar on the Nick.com homepage refer to audio-visual materials.

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See www.nick.com as of September 28, 2012.
b.

The home page of www.nickjr.com advertises it as a place to watch the following

children’s shows: Dora the Explorer, Bubble Guppies, UmiZoomi, FreshBeat Band,
Diego, Max & Ruby, Mike the Knight, and more. Immediately upon visiting NickJr.com,
the page loads videos which play in the upper right hand portion of the home-page.
65.

Defendant Viacom violated the VPPA by knowingly disclosing the plaintiffs’

personally identifiable information to Defendant Google by allowing Google to place its
doubleclick.net “id” cookie on the plaintiffs’ computers when said cookie included code which
provided Google with access to information about the plaintiffs obtained through the first-party
cookies placed by Defendant Viacom on the plaintiffs’ computers; through the use of the first
party cookie and its own “id” cookie, defendant Google was able to obtain information including
the videos requested, obtained, and watched by plaintiffs on Viacom’s websites Nick.com and
NickJr.com and NeoPet.com.
66.

As a result of the above violations and pursuant to 18 U.S.C. §2710, Defendants

are liable to Plaintiffs and the Class for “liquidated damages” of not less than $2,500 per
plaintiff; reasonable attorney’s fees and other litigation costs; injunctive and declaratory relief;
and punitive damages in an amount to be determined by a jury, but sufficient to prevent the same
or similar conduct by the Defendants in the future.
COUNT III – INTRUSION UPON SECLUSION
67.

Plaintiffs incorporate all preceding paragraphs as though fully set forth herein.

68.

In tracking the electronic communications and video materials requested and

obtained of minor children under the age of 13 without the consent of the children or their legal
guardians, the Defendants intentionally intruded upon the plaintiffs’ solitude or seclusion in that

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they took information from the privacy of the homes, and in some cases, bedrooms, of minor
children under the age of 13 without even an attempt to gain permission from the parents or
guardians of said minor children.
69.

The plaintiffs, minor children under the age of 13, did not, and, by law, could not

have consented to the Defendants’ intrusion.
70.

The Defendants’ intentional intrusion on solitude or seclusion of the Plaintiffs,

minor children under the age of 13, would be highly offensive to a reasonable person.

COUNT IV – UNJUST ENRICHMENT
71.

Plaintiffs incorporate all preceding paragraphs as though fully set forth herein.

72.

Plaintiffs conferred a benefit on Defendants without plaintiffs’ consent or the

consent of their parents or guardians, namely access to wire or electronic communications over
the Internet.
73.

Upon information and belief, Defendants realized such benefits through either

sales to third-parties or greater knowledge of its own users’ behavior without their consent.
74.

Acceptance and retention of such benefit without Plaintiffs’ consent is unjust and

inequitable.
PRAYER FOR DAMAGES
WHEREFORE, Plaintiffs, on behalf of themselves and all members of the Class
respectfully pray 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)(2) and (3) or, in the alternative, Fed. R. Civ. P. 23(b)(1) and
appointing Plaintiffs and his counsel, to represent the Class and directing that reasonable

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notice of this action be given to all other members of the Class as necessary and
appropriate;
b.

For a declaration that the Defendant’s actions violated 18 U.S.C. § 2710.

c.

For a declaration that the Defendants’ actions violated 18 U.S.C. §2510 et seq.;

d.

For a declaration the Defendants unlawfully intruded upon the seclusion of the

plaintiffs, minor children under the age of 13;
e.

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;
f.

For all actual damages, statutory damages, penalties, and remedies available for

the Defendants’ violations of the Video Privacy Protection Act, 18 U.S.C. § 2710 and
the Wiretap Act, 18 U.S.C. §2510 et seq.
g.

That judgment be entered against Defendants for statutory damages pursuant to

18 U.S.C. §2520(b)(2);
h.

For all actual, statutory and liquidated damages, penalties, and remedies available

for the Defendant Viacom’s violations of the Video Privacy Protection Act, 18 U.S.C.
§2710;
i.

That Plaintiffs and the Class recover pre-judgment and post-judgment interest as

permitted by law;
j.

For an award to Plaintiffs and the Class of their reasonable attorneys fees and

other litigation costs reasonably incurred pursuant to 18 U.S.C. 2520(b)(3);
k.

That the court enter an order granting Plaintiffs and the Class a preliminary and

permanent injunction restraining and enjoining Defendant from any act to intercept

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electronic information from its users when they are not logged-in and from disclosing any
of the information already acquired on its servers;
l.

That the Court grant such other and further relief as may be just and proper;
JURY DEMAND

Plaintiffs demand that all issues so triable in this Complaint be tried to a jury.
Dated this 2nd day of January, 2013.

Respectfully submitted:
LUBEL VOYLES LLP

By: /s/ Adam Q. Voyles
SBT #: 24003121
5020 Montrose Blvd., Suite 800
Houston, Texas 77006
Telephone: [phone]
Facsimile: 713-284-5250
Email: [e-mail]

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