1 KASSRA P.

NASSIRI (215405)
[email protected]
2 CHARLES H. JUNG (217909)
[email protected]
3 NASSIRI & JUNG LLP
251 Kearny Street, Suite 501
4 San Francisco, California 94108
Telephone: (415) 762-3100
5 Facsimile: (415) 534-3200
6 Attorneys for Plaintiff Mike Robertson
7
UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
9
SAN JOSE DIVISION
10

11
MIKE ROBERTSON, individually and on behalf Case No.
12 of all others similarly situated,
CLASS ACTION
13 Plaintiff,
14 vs. COMPLAINT FOR:
15 FACEBOOK, INC., a Delaware corporation, and 1. BREACH OF CONTRACT;
DOES 1-50, inclusive, 2. BREACH OF IMPLIED COVENANT OF
16 GOOD FAITH AND FAIR DEALING;
Defendant. 3. VIOLATION OF THE ELECTRONIC
17 COMMUNICATIONS PRIVACY ACT;
4. VIOLATION OF STORED
18 COMMUNICATIONS ACT; AND
5. UNJUST ENRICHMENT.
19
ACTION FILED: 05/31/10
20
JURY TRIAL DEMANDED
21

22
Plaintiff brings this suit on behalf of himself and all others similarly situated, and makes the
23
following allegations on information and belief, except as to allegations pertaining to Plaintiff,
24
which are based on his personal knowledge:
25
I. INTRODUCTION
26
1. This is a class action lawsuit, brought by, and on behalf of similarly-situated
27
individuals whose privacy was violated by the actions of Facebook, Inc. (“Facebook”).
28

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CLASS ACTION COMPLAINT
1
2. Facebook’s own policies state that “We never share your personal information with
2
our advertisers” and “We do not give your content of information to advertisers without your
3
consent.”
4
3. Unbeknownst to Facebook members, and in violation of Facebook’s own stated
5
policies, Facebook intentionally and knowingly transmitted personal user information to third party
6
advertisers without member consent.
7
4. Facebook’s conduct violated one or more of the following:
8
a. Facebook’s own terms and conditions with its members;
9
b. Electronic Communications Privacy Act, 18 U.S.C. § 2510 et seq. (the “ECPA”);
10
and
11
c. Stored Communications Act, 18 U.S.C. § 2701 et seq.(the “SCA”).
12
II. PARTIES
13
5. Plaintiff Mike Robertson is a resident of Marin County, California. Between June
14
2008 and June 2010, Plaintiff clicked on at least one advertising banner from his Facebook profile
15
page.
16
6. Defendant Facebook, Inc. (hereinafter, “Facebook”) is a Delaware corporation which
17
maintains its headquarters in Palo Alto, California.
18
III. JURISDICTION AND VENUE
19
7. This Court has personal jurisdiction over all defendants because (a) a substantial
20
portion of the wrongdoing alleged in this complaint took place in this state, (b) all defendants are
21
authorized to do business here, have sufficient minimum contacts with this state, and/or otherwise
22
intentionally avail themselves of the markets in this state through the promotion, marketing and sale
23
of products and services in this state, to render the exercise of jurisdiction by this Court permissible
24
under traditional notions of fair play and substantial justice.
25
8. This Court has subject matter jurisdiction pursuant to the Class Action Fairness Act
26
of 2005, U.S.C. §§ 1332(a) and 1332(d) because the amount in controversy exceeds $5,000,000.00
27
exclusive of interest and costs, and more than two-thirds of the members of the putative class are
28
citizens of states different than that of Facebook.

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CLASS ACTION COMPLAINT
1
9. Venue is proper in this District under 28 U.S.C. § 1391(b) and (c). A substantial
2
portion of the events and conduct giving rise to the violations of law complained of herein occurred
3
in this District. Facebook’s principal executive offices and headquarters are located in Palo Alto,
4
California.
5
IV. INTRADISTRICT ASSIGNMENT
6
10. Intradistrict assignment to the San Jose Division is proper because the principal
7
offices of defendant Facebook are located in Santa Clara County.
8
V. STATEMENT OF FACTS
9
A. Facebook Receives Personal Information from its Members and Promises not to
10 Disclose that Information to Advertisers
11 11. Facebook owns and operates an online web site located at http://www.facebook.com.
12 12. Facebook is an online social network to exchange personal information confidentially
13 with friends.
14 13. Facebook membership requires the member to provide their actual name, birth date,
15 gender and email address. Facebook also requires members to register with a unique username and
16 password in order to access its computer network. Facebook allows members to provide information
17 about the member’s “hometown” to join a “network,” which generally is a high school, college,
18 workplace, or city. Facebook members also have the option to provide additional personal
19 information including sexual preferences, political and religious convictions, telephone numbers,
20 address, activities, interest, education, work, and to post photographs.
21 14. The information described in Paragraph 13 above can be used to identify and locate
22 the Facebook member. Personally identifiable information (hereinafter, “PII”) is information that
23 can be used to distinguish or trace an individual’s identity, and when combined or used with other
24 identifying information, is, or can be linked or linkable to a specific individual.
25 15. Facebook, which is under increasing scrutiny over its privacy practices from
26 consumer, privacy advocates and lawmakers, enacted a privacy policy in order to address privacy
27 concerns and to argue against the need for government regulation.
28 16. Facebook requires its members to be contractually bound to the following terms and

conditions:
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CLASS ACTION COMPLAINT
1
a. Facebook’s Privacy Guide states as follows:
2
We never share your personal information with our advertisers.
3 Facebook's ad targeting is done entirely anonymously. If advertisers
select demographic targeting for their ads, Facebook automatically
4 matches those ads to the appropriate audience. Advertisers only
receive anonymous data reports.
5
Controlling How You Share, http://www.facebook.com/privacy/explanation.php (last visited May
6
31, 2010)(emphasis in original).
7
b. Facebook’s Privacy Policy states as follows:
8
To serve personalized advertising to you. We don’t share your
9 information with advertisers without your consent. (An example of
consent would be if you asked us to provide your shipping address to
10 an advertiser to receive a free sample.) We allow advertisers to choose
the characteristics of users who will see their advertisements and we
11 may use any of the non-personally identifiable attributes we have
collected (including information you may have decided not to show to
12 other users, such as your birth year or other sensitive personal
information or preferences) to select the appropriate audience for
13 those advertisements. For example, we might use your interest in
soccer to show you ads for soccer equipment, but we do not tell the
14 soccer equipment company who you are. You can see the criteria
advertisers may select by visiting our advertising page. Even though
15 we do not share your information with advertisers without your
consent, when you click on or otherwise interact with an advertisement
16 there is a possibility that the advertiser may place a cookie in your
browser and note that it meets the criteria they selected.
17
Facebook’s Privacy Policy, http://www.facebook.com/policy.php (last visited May 31, 2010)
18
(emphasis in original).
19
c. Facebook’s Statement of Rights and Responsibilities states as follows:
20
About Advertisements on Facebook
21
Our goal is to deliver ads that are not only valuable to advertisers, but
22 also valuable to you. In order to do that, you agree to the following:
23 1. You can use your privacy settings to limit how your name and
profile picture may be associated with commercial or sponsored
24 content served by us. You give us permission to use your name and
profile picture in connection with that content, subject to the limits you
25 place.
26 2. We do not give your content or information to advertisers without
your consent.
27
Statement of Rights and Responsibilities, http://www.facebook.com/terms.php (last visited on May
28
31, 2010).

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CLASS ACTION COMPLAINT
1
17. Facebook’s Director of Corporate Communications and Public Policy posted the
2
following on the Facebook Blog:
3
Still others asked to be opted-out of having their information shared
4 with advertisers. This reflects a common misconception about
advertising on Facebook. We don't share your information with
5 advertisers unless you tell us to (e.g. to get a sample, hear more, or
enter a contest). Any assertion to the contrary is false. Period. Instead,
6 we enable advertisers to target anonymized demographics and
attributes. That is, a company selling boats can target people between
7 40 and 50 years old who expressed an interest in boating. However,
we never provide the advertiser any names or other information about
8 the people who are shown, or even who click on, the ads.
9 The Facebook Blog, http://blog.facebook.com/blog.php?post=379388037130 (last visited May 31,
10 2010).
11 B. Facebook Intentionally Shares Personal Data with Advertisers Without Member
Knowledge or Consent
12
18. In August 2009, a paper entitled “On the Leakage of Personally Identifiable
13
Information Via Online Social Networks” (hereinafter, “August 2009 Research Paper”) written by
14
researchers at AT&T Labs and Worcester Polytechnic Institute flagged Facebook’s sharing of
15
member PII. The August 2009 Research Paper highlighted Facebook’s practice of transmitting its
16
members’ user names or ID numbers tied to personal profiles being viewed when members click on
17
ads. The researchers concluded that by using such leaked information in combination with tracking
18
cookies, third parties, such as advertisers, could gain access to a Facebook member’s other PII listed
19
in Paragraph 13 of this Complaint, identify individual Facebook members, and even follow their
20
movements across the internet.
21
19. According to an exposé published by the online Wall Street Journal on May 21, 2010
22
(“WSJ Exposé”), Facebook had been sending to advertisers information that directed those
23
advertisers back to a Facebook member’s profile page full of personal information of the type set
24
forth in Paragraph 13 of this Complaint. According to the article, in some cases Facebook signaled
25
“which user name or ID was clicking on the ad as well as the user name or ID of the page being
26
viewed. By seeing what ads a user clicked on, an advertiser could tell something about a user’s
27
interests.”
28

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20. Also according to the WSJ Exposé, although the researchers who published the
2
August 2009 Research Paper contacted Facebook about the transmission of personal data,
3
Facebook’s practice persisted. According to the WSJ Exposé, it wasn’t until after being contacted
4
by the Wall Street Journal that Facebook changed its software to prevent the indentifying code tied
5
to the user from being transmitted:
6
A Facebook spokesman acknowledged it has been passing data to ad
7 companies that could allow them to tell if a particular user was
clicking an ad.
8
VI. CLASS ACTION ALLEGATIONS
9
21. Plaintiff brings this action on behalf of himself and all other persons in the following
10
similarly-situated class: all Facebook members who, at any time after June 1, 2006, clicked on an
11
advertisement banner located on their Facebook profile page (the “Class”). Excluded from the
12
Class are Facebook, its officers and directors, members of their immediate families and each of their
13
legal representatives, officers, directors, successors or assigns and any entity in which Facebook has
14
or have had a controlling interest, the judge to whom this case is assigned and any member of the
15
judge’s immediate family.
16
22. Every member of the proposed Class is a party to Facebook’s terms and conditions as
17
alleged herein.
18
23. The Class is composed of numerous people, whose joinder in this action would be
19
impracticable. The disposition of their claims through this class action will benefit Class members,
20
the parties and the courts. Since 2006, Facebook has grown from millions of users to over 300
21
million users. Upon information and belief, there are thousands of persons in the Class.
22
24. Upon information and belief, the identities and addresses of the individual members
23
of the Class are available through Facebook’s electronic records.
24
25. There is a well-defined community of interest in questions of law and fact affecting
25
the Class. These questions of law and fact predominate over individual questions affecting
26
individual Class members, including, but not limited to, the following:
27
a. What and how personally identifiable data was transmitted to advertisers;
28

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CLASS ACTION COMPLAINT
1
b. Whether Facebook’s terms and conditions prohibit Facebook from sending
2
personally identifiable data to advertisers;
3
c. Whether any Class member knew or consented to Facebook’s transmission of
4
personally identifiable data to advertisers;
5
d. Whether Class members are entitled to damages as a result of Facebook’s
6
conduct, and, if so, what is the measure of those damages;
7
e. Whether Facebook’s conduct towards the members of the Class violated the
8
ECPA, and the SCA, its contract with the Class, and whether Facebook was
9
unjustly enriched thereby, as alleged below.
10
26. Facebook engaged in a common course of conduct giving rise to the legal rights
11
sought to be enforced by Class members. Similar or identical statutory and common law violations,
12
business practices and injuries are involved. Individual questions, if any, pale by comparison to the
13
numerous common questions that dominate.
14
27. The injuries sustained by members of the Class flow, in each instance, from a
15
common nucleus of operative facts. In each case, Facebook caused or permitted unauthorized
16
communications of private and personally indentifying information to be delivered to third parties
17
without adequate or any notice, consent or opportunity to opt out.
18
28. Given the similar nature of the Class members’ claims and the absence of material
19
differences in the statutes and common laws upon which the Class members’ claims are based, a
20
nationwide class will be easily managed by the Court and the parties.
21
29. Because of the relatively small size of the individual Class members’ claims, no Class
22
member could afford to seek legal redress on an individual basis.
23
30. Plaintiff’s claims are typical of those of the Class as all members of the Class are
24
similarly affected by Facebook’s uniform and actionable conduct as alleged herein.
25
31. Plaintiff will fairly and adequately protect the interests of the Class and has retained
26
counsel competent and experienced in class action litigation. Plaintiff has no interests antagonistic
27
to, or in conflict with, the Class that Plaintiff seeks to represent.
28

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CLASS ACTION COMPLAINT
1 COUNT I
(Breach of Contract)
2
32. Plaintiff repeats and realleges each of the preceding paragraphs, as if set forth fully
3
herein.
4
33. Plaintiff and members of the Class signed up to be members of Facebook, pursuant to
5
which each entered into an agreement with Facebook (e.g., Facebook’s Statement of Rights and
6
Responsibilities). Pursuant to the terms and conditions of that agreement, Plaintiff and the Class
7
provided Facebook with valuable personally identifiable information and Facebook promised not to
8
transmit such information to advertisers absent member consent. Facebook’s terms and conditions
9
were non-negotiable and offered by Facebook on a take-it-or-leave-it basis.
10
34. Plaintiff and members of the Class never authorized Facebook to transmit PII to any
11
advertisers.
12
35. Facebook breached its contractual obligations by transmitting PII, including user
13
names and user IDs, to advertisers without consent.
14
36. Plaintiff and the Class have performed their obligations under the contracts.
15
37. As a direct and proximate result of Facebook’s breach of their agreement with
16
Plaintiff and members of the Class, Plaintiff and the Class have been damaged in an amount to be
17
proven at trial.
18
COUNT II
19 (Breach of Implied Covenant of Good Faith and Fair Dealing)
20 38. Plaintiff repeats and realleges each of the preceding paragraphs, as if set forth fully
21 herein.
22 39. Facebook expressly and/or impliedly agreed to carry out its contractual obligations in
23 good faith and fair dealing and not to do anything that would have the effect of injuring the right of
24 Plaintiff and the Class to receive the benefits of the agreement.
25 40. Plaintiff and members of the Class reasonably rely upon Facebook to act in good faith
26 both with regard to Facebook’s terms and conditions and in the methods and manner in which
27 Facebook carries out those terms and conditions. Facebook’s transmission of PII evidences bad faith
28 and ill motive.

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1
41. Facebook breached the covenant of good faith and fair dealing by exercising bad faith
2
in deliberately, routinely and systematically transmitting Plaintiff’s and Class member’s PII to
3
advertisers without consent.
4
42. As a direct and proximate result of Facebook’s breach of the covenant of good faith
5
and fair dealing, Plaintiff and the Class have been damaged in an amount to be proven at trial.
6
COUNT III
7 (Violation of Electronic Communications Privacy Act)
8 43. Plaintiff repeats and realleges each of the preceding paragraphs, as if set forth fully
9 herein.
10 44. Facebook operates an “electronic communications service” as defined in 18 U.S.C. §
11 2510(15). Facebook provides its members with the ability to send or receive electronic
12 communications to or from any of Facebook’s millions of members.
13 45. Pursuant to the Electronic Communications Privacy Act of 1986 (“ECPA”),
14 “electronic storage” includes any “storage of [a wire or electronic] communication by an electronic
15 communication service for purposes of backup protection of such communication.” 18 U.S.C. §
16 2510(17). The Facebook website serves as a backup for Facebook members of all communications
17 between Facebook members and PII posted to member profiles.
18 46. Pursuant to 18 U.S.C. § 2701(a), absent exceptions inapplicable here,
19 “whoever…intentionally exceeds an authorization to access that facility; and thereby obtains…[an]
20 electronic communication while it is in electronic storage in such system” has violated the ECPA.
21 47. The ECPA, at 18 U.S.C. § 2702(a), provides that “a person or entity providing an
22 electronic communication service to the public shall not knowingly divulge to any person or entity
23 the contents of a communication while in electronic storage by that service.”
24 48. Facebook intentionally and knowingly exceeded its authorization to access and
25 control confidential and private information relating to Plaintiff and Class members’ electronic
26 communications without the consent, knowledge or authorization of Plaintiff and members of the
27 Class in violation of the ECPA.
28 49. Facebook intentionally and knowingly disclosed to Plaintiff’s and the Class members’

electronic communication contents and user information, in violation of the ECPA.

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50. Facebook unlawfully accessed and used, and voluntarily disclosed, the contents of the
2
intercepted communications to enhance its profitability and revenue through advertising. This
3
disclosure was not necessary for the operation of Facebook’s system or to protect Facebook’s rights
4
or property.
5
51. Plaintiff and Class members are "person[s] whose ... electronic communication is
6
intercepted ... or intentionally used in violation of this chapter" within the meaning of 18 U.S.C. §
7
2520.
8
52. Each incident in which Facebook provided personally identifiable information of a
9
Facebook member is a separate and distinct violation of the ECPA. Plaintiff and members of the
10
Class therefore seek remedy as provided for by 18 U.S.C. § 2520, including such preliminary and
11
other equitable or declaratory relief as may be appropriate, damages consistent with subsection (c) of
12
that section to be proven at trial, punitive damages to be proven at trial, and a reasonable attorney's
13
fee and other litigation costs reasonably incurred.
14
53. Plaintiff and the Class, pursuant to 18 U.S.C. §2520, are entitled to preliminary,
15
equitable, and declaratory relief, in addition to statutory damages of the greater of $10,000 or $100 a
16
day for each day of violation, actual and punitive damages, reasonable attorneys' fees, and
17
Facebook’s profits obtained from the above-described violations.
18
COUNT IV
19 (Violation of the Stored Communications Act)
20 54. Plaintiff repeats and realleges each of the preceding paragraphs, as if set forth fully
21 herein.
22 55. Pursuant to 18 U.S.C. § 2701(a), absent exceptions inapplicable here,
23 “whoever…intentionally exceeds an authorization to access that facility; and thereby obtains…[an]
24 electronic communication while it is in electronic storage in such system” has violated the ECPA.
25 56. The ECPA, at 18 U.S.C. § 2702(a), provides that “a person or entity providing an
26 electronic communication service to the public shall not knowingly divulge to any person or entity
27 the contents of a communication while in electronic storage by that service.”
28 57. Facebook intentionally and knowingly exceeded its authorization to access and

control confidential and private information relating to Plaintiff and Class members’ electronic
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CLASS ACTION COMPLAINT
1
communications without the consent, knowledge or authorization of Plaintiff and members of the
2
Class in violation of the SCA.
3
58. Facebook intentionally and knowingly disclosed to Plaintiff’s and the Class members’
4
electronic communication contents and user information, in violation of the SCA.
5
59. Each incident in which Facebook provided personally identifiable information of a
6
Facebook member is a separate and distinct violation of the SCA, subject to the remedies provided
7
under the SCA, and specifically pursuant to 18 U .S.C. § 2707(a).
8
60. Plaintiff and members of the Class therefore seek remedy as provided for by 18
9
U.S.C. § 2707(b) and (c), including such preliminary and other equitable or declaratory relief as may
10
be appropriate, damages consistent with subsection (c) of that section to be proven at trial, punitive
11
damages to be proven at trial, and a reasonable attorney's fee and other litigation costs reasonably
12
incurred.
13
61. Plaintiff and the Class, pursuant to 18 U.S.C. §2707(c), are entitled to preliminary,
14
equitable, and declaratory relief, in addition to statutory damages of no less than $1,000 per
15
violation, , actual and punitive damages, reasonable attorneys' fees, and Facebook’s profits obtained
16
from the above-described violations.
17
COUNT V
18 (Unjust Enrichment)
19 62. Plaintiff repeats and realleges each of the preceding paragraphs, as if set forth fully
20 herein.
21 63. A benefit has been conferred upon Facebook by Plaintiffs and the Class. On
22 information and belief, Facebook, directly or indirectly, has received and retains information
23 regarding the affiliation and business relationships between Plaintiffs and internet product and
24 service providers, and has received and retains information regarding specific purchase and
25 transactional information that is otherwise private, confidential, and not of public record
26 64. Facebook appreciates or has knowledge of said benefit.
27 65. Under principles of equity and good conscience, Facebook should not be permitted to
28 retain the information which it has acquired by virtue of its unlawful conduct. All funds, revenues,

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1
and benefits received by Facebook through its advertiser programs rightfully belong to Plaintiff and
2
the Class, which Facebook has unjustly received as a result of its actions.
3
66. Plaintiff and the Class are entitled to and hereby request restitution of the fees
4
collected pursuant to this unlawful business practice.
5
VIII. PRAYER FOR RELIEF
6
WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, prays for
7
judgment against Facebook as follows:
8
1. An order certifying the Class, appointing the named Plaintiff as representative of the
9
Class, and appointing the law firm representing Plaintiff as counsel for the Class;
10
2. Damages, including statutory damages where applicable, suffered by Plaintiff and the
11
Class resulting from Facebook’s unlawful practices as described above, in an amount to be proven at
12
trial;
13
3. Exemplary and punitive damages;
14
4. Restitution of all monies acquired by Facebook as a result of its unlawful practices
15
described above;
16
5. Ordering an accounting and imposing a constructive trust upon all assets Facebook
17
has acquired from Plaintiff and the Class as a result of unlawful practices described above, to avoid
18
dissipation, fraudulent transfers, and/or concealment of such assets by Facebook;
19
6. The issuance of injunctive orders enjoining Facebook from transmitting PII
20
information to advertisers without consent;
21
7. Payment of costs of suit herein incurred;
22
8. Pre-judgment and post-judgment interest on amounts awarded;
23
9. Attorney’s fees, costs and expenses;
24
10. For such other and further relief that this Court may deem just and proper.
25

26

27

28

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CLASS ACTION COMPLAINT