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COMPLAINT ( Filing Fee $ 350 Receipt Number 0542-4397241), Filed By

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COMPLAINT ( Filing Fee $ 350 Receipt Number 0542-4397241), Filed By Opperman et al v. Path, Inc. et al Doc. 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS AUSTIN DIVISION Marc Opperman, Rachelle King, § Claire Moses, Gentry Hoffman, § Steve Dean, Alicia Medlock, § Alan Beueshasen, Scott Medlock, § Greg Varner, Judy Long, Guili Biondi, § Jason Green and Nirali Mandaywala, § Case No. __________ on behalf of themselves and all § others similarly situated, § § Plaintiffs, § vs. § § Class Action Path, Inc., Twitter, Inc., Apple, Inc., § Facebook, Inc., Beluga, Inc. ., § Yelp! Inc., Burbn, Inc., Instagram, Inc., § Foursquare Labs, Inc., Gowalla Incorporated, § Foodspotting, Inc., Hipster, Inc., LinkedIn § Corporation, Rovio Mobile Oy, ZeptoLab UK § Jury Trial Demanded Limited aka ZeptoLab, Chillingo Ltd., § Electronic Arts Inc., and Kik Interactive, Inc., § § Defendants. § PLAINTIFFS’ ORIGINAL CLASS ACTION COMPLAINT “Don't take things that aren't yours.” - Robert Fulghum, All I Really Need To Know I Learned In Kindergarten 1 Dockets.Justia.com Plaintiffs, on behalf of themselves and all others similarly situated, allege as follows: NATURE OF THE ACTION 1. Millions of wireless mobile device owners now keep their private address books—lists of hundreds or even thousands of personal and professional contacts—on their mobile wireless devices. These lists, which include contact names, phone numbers, physical and e-mail addresses, job titles, birthdays, and other similar personal information amassed over the owners’ lifetimes, are some of the most personal data that owners carry on their wireless mobile devices.1 2. The defendants—several of the world’s largest and most influential technology and social networking companies—have unfortunately made, distributed and sold mobile software applications (“Apps”) that, once installed on a wireless mobile device, surreptitiously harvest, upload and illegally steal the owner’s address book data without the owner’s knowledge or consent. As revealed in a recent NEW YORK TIMES report, “The address book in smartphones -- where some of the user’s most personal data is carried— is free for app developers to take at will, often without the phone owner’s knowledge. Companies that make many of the most popular smartphone apps for Apple and Android devices — Twitter, Foursquare and 1 See Nicole Peroth and Nick Bilton, Mobile Apps Take Data Without Permission, NEW YORK TIMES (online ed. at www.nytimes.com and http://bits.blogs.nytimes.com/2012/02/15/google-and-mobile-apps-take-data- books-without-permission/ Feb. 15, 2012) (emphasis added) (“The address book in smartphones [is] where some of the user’s most personal data is carried”). 2 Instagram among them — routinely gather the information in personal address books on the phone and in some cases store it on their own computers. * * * While Apple says it prohibits and rejects any app that collects or transmits users’ personal data without their permission, that has not stopped some of the most popular applications for the iPhone, iPad and iPod — like Yelp, Gowalla, Hipster and Foodspotting — from taking users’ contacts and transmitting it without their knowledge.”2 3. Literally billions of contacts from the address books of tens of millions of unsuspecting wireless mobile device owners have now been accessed and stolen. The surreptitious data uploads—occurring over both cellular networks and open, public wireless access nodes in homes, coffee shops, restaurants, bars, stores and businesses all across the nation—have, quite literally, turned the address book owners’ wireless mobile devices into mobile radio beacons broadcasting and publicly exposing the unsuspecting device owner’s address book data to the world. 4. This class action lawsuit seeks to halt and prevent these unconscionable, illegal practices, to mandate fixes to these mobile devices and Apps to prevent these invasions of users’ privacy and the unauthorized access and/or transfer of unencrypted address book data, to require that all wrongfully-obtained data be permanently purged, to impose constructive trusts over the associated benefits these defendants wrongfully and unjustly realized from the stolen data, and to recover damages for the harm suffered by the Plaintiffs and millions of other unsuspecting wireless mobile device owners whose data has been stolen and whose privacy has been severely compromised. 2 See id. 3 PARTIES Plaintiffs 5. Plaintiff Marc Opperman (“Mr. Opperman”) is an individual residing in Austin, Texas. Mr. Opperman owns and regularly uses the following wireless mobile devices: an iPhone branded mobile phone manufactured by Apple, Inc. The following defendants’ Apps are installed on Mr. Oppenheim’s identified wireless mobile device: Path, Twitter, Facebook, Instagram, LinkedIn and Angry Birds. 6. Plaintiff Judy Long (“Ms. Long”) is an individual residing in Austin, Texas. Ms. Long owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Ms. Long’s identified wireless mobile device: Path. 7. Plaintiff Claire Moses (“Ms. Hodgins”) is an individual residing in Austin, Texas. Ms. Hodgins owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Ms. Hodgins’ identified wireless mobile device: Twitter, Facebook, Yelp!, Angry Birds and Cut the Rope. 8. Plaintiff Gentry Hoffman (“Mr. Hoffman”) is an individual residing in Austin, Texas. Mr. Hoffman owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Mr. Hoffman’s identified wireless mobile device: Twitter, Instagram, Foursquare and Yelp!. 4 9. Plaintiff Steve Dean (“Mr. Dean”) is an individual residing in Austin, Texas. Mr. Dean owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Mr. Dean’s identified wireless mobile device: Twitter, Facebook, Gowalla and LinkedIn. 10. Plaintiff Alicia Medlock (“Ms. Medlock”) is an individual residing in Austin, Texas. Ms. Medlock owns and regularly uses the following wireless devices: an Android branded mobile phone manufactured by Samsung that operates on Google, Inc.’s (“Google’s”) Android operating system (“Android phone”). The following defendants’ Apps are installed on Ms. Medlock’s identified wireless mobile device: Twitter, Facebook and LinkedIn. 11. Plaintiff Alan Beuershasen (“Mr. Beuershasen”) is an individual residing Austin, Texas. Mr. Berchausen owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Mr. Berchausen’s identified wireless mobile device: Facebook, Twitter, Gowalla, Foursquare, LinkedIn and Angry Birds. 12. Plaintiff Scott Medlock (“Mr. Medlock”) is an individual residing in Austin, Texas. Mr. Medlock owns and regularly uses the following wireless mobile device: an Android branded mobile phone manufactured by Samsung that operates on Google’s Android operating system. The following defendants’ Apps are installed on Mr. Medlock’s identified wireless mobile device: Twitter and Facebook. 5 13. Plaintiff Greg Varner (“Mr. Varner”) is an individual residing in Austin, Texas. Mr. Varner owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Plaintiff’s identified wireless mobile device: Twitter, Instagram, Foursquare, Gowalla, Angry Birds and Cut the Rope. 14. Plaintiff Rachelle King (“Ms. King”) is an individual residing in Austin, Texas. Ms. King owns, regularly uses and has regularly used the following wireless mobile device(s): multiple iPhones. The following defendants’ Apps or were installed on Ms. Kings’s identified wireless mobile devices: Twitter, Facebook, FoodSpotting, Hipster, Instagram, Gowalla, and Foursquare. 15. Plaintiff Giuli Biondi (“Ms. Biondi”) is an individual residing in Austin, Texas. Mr. Biondi owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Ms. Biondi’s identified wireless mobile device: Instagram, Twitter, Facebook, Yelp!, LinkedIn and Cut the Rope. 16. Plaintiff Jason Green (“Mr. Green”) is an individual residing in Fayetteville, Arkansas. Mr. Green owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Ms. Green’s identified wireless mobile device: Instagram, Twitter, Facebook, Kik Messenger, Path, Angry Birds and Cut the Rope. 6 17. Plaintiff Nirali Mandaywala (“Ms. Mandaywala”) is an individual residing in Austin, Texas. Mr. Mandaywala owns and regularly uses the following wireless mobile devices: an iPhone. The following defendants’ Apps are installed on Ms. Mandaywala’s identified wireless mobile device: Instagram, Twitter, Facebook, Yelp!, Gowalla, Foursquare, Angry Birds and Cut the Rope. 18. [Paragraphs 18 and 19 are intentionally left blank.] 19. [Paragraphs 18 and 19 are intentionally left blank.] Defendants 20. Defendant Apple, Inc. (“Apple”) is a California corporation with offices in Austin, Texas. Apple regularly conducts business in this judicial district. Apple may be served with process through its registered Texas agent, CT Corp. System, at 350 North St. Paul Street, Dallas, TX 75201-4234. 21. Defendant Path, Inc. (“Path”) is a Delaware corporation with its principal place of business at 400 2nd Street, Suite 350, San Francisco, California 94107. Path is not presently registered to conduct business in the State of Texas and has not designated an agent
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