Linked in Complaint

7/29/2019 Linked in Complaint

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Plaintiffs Paul Perkins, Pennie Sempell, Ann Brandwein, and Erin Eggers(collectively, "Plaintiffs"), by and through their attorneys, Russ, August & Kabat,bring this action on behalf of themselves and all others similarly situated, make thefollowing allegations on information and belief, except as to allegations pertainingto Plaintiffs individually, which are based on their respective personal knowledge.

INTRODUCTION1. Plaintiffs bring this class action complaint against Linkedln

Corporation ("LinkedIn") for appropriating the names, photographs, likenesses,and identities of Plaintiffs to advertise its products and services for a commercialpurpose without Plaintiffs' consent, for unfair and deceptive business practices, andin violation ofLinkedIn's User Agreement with users, accepted industry standards,and federal and state law.

2. The wrongful conduct by LinkedIn that is the subject ofthiscomplaint arises from Linkedln's practice ofbreaking into its users' third partyemail accounts, downloading email addresses that appear in the account, and thensending out multiple reminder emails ostensibly on behalf of the user advertisingLinkedIn to non-members. Linkedln provides no functional way to stop multiplesubsequent advertising emails from being sent.

3. When users sign up for LinkedIn they are required to provide anexternal email address as their username and to setup a new password for theirLinkedln account. LinkedIn uses this information to hack into the user's externalemail account and extract email addresses. If a LinkedIn user leaves an externalemail account open, LinkedIn pretends to be that user and downloads the emailaddresses contained anywhere in that account to LinI::edln's servers. Linkedln isable to download these addresses without requesting the password for the externalemail accounts or obtaining users' consent.

4. As a part of its effort to acquire new users, Linkedln sends multipleemails endorsing its products, services, and brand to potential new users. In an

1CLASS ACTION COMPLAINT

Case5:13-cv-04303-HRL Document1 Filed09/17/13 Page2 of 46


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CLASS ACTION COMPLAINT



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in which LinkedIn has or had a controlling interest; (c) the judge towhom this case is assigned and the judge's immediate family; (d)any juror selected to hear this case.

59. The Class is comprised ofmillions ofpersons, and is therefore sonumerous that joinder of individual cases would be impracticable. The dispositionof their claims through this action will benefit Class Members, the parties and thecourts. Upon infonnation and belief, LinkedIn has over 225 million Membersworldwide.

60. Upon infonnation and belief, the identities and contact infonnation ofthe individual Members of the Class are available through LinkedIn's electronicrecords.

61. Common questions of law and fact affecting the Class predominateover any individual issues. These questions of law and fact include, but are notlimited to, the following:

Whether Plaintiffs and the Class consented to the use of their names,photographs, likenesses, or identities in multiple endorsement emails sent tothird parties by LinkedIn;

Whether LinkedIn gained a commercial benefit or some other advantage byusing Plaintiff and the Class's names, photographs, likenesses, or identitiesin endorsement reminder email advertisements;

Whether Plaintiffs and the Class were hanned by the nonconsensual use oftheir names, photographs, likenesses, or identities in reminder endorsementemail advertisements sent by LinkedIn to third parties, and whetherLinkedIn's conduct was a substantial factor in causing that hann;

Whether Class Members are entitled to damages as a result ofLinkedIn'sconduct, and, if so, what is the measure of those damages;

Whether LinkedIn's conduct described herein violated California's UnfairCompetition Law (Cal. Bus. & Prof. Code 17200, et. seq.);




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Whether LinkedIn was unjustly enriched as a result of its conduct describedherein;

Whether LinkedIn violated California's Common Law Right ofPublicity; Whether LinkedIn violated the Electronic Communications Privacy Act, 18U.S.C. 2510, et seq.; Whether LinkedIn violated the Stored Communications Act, 18 U.S.C.

2701, et seq.; Whether LinkedIn violated California's Comprehensive Data Access and

Fraud Act, Penal Code 502; Whether LinkedIn violated California's Invasion ofPrivacy Act, Penal Code

631; Whether Linkedln violated the California Consumer Remedies Act, Cal Civ.

Code. 1770. What the value of an endorsement by a non-celebrity is in a social network

endorsement email advertisement.62. LinkedIn engaged in a common course of conduct giving rise to the

legal rights sought to be enforced by Class Members. Similar or identical statutoryand common law violations, business practices, and injuries are involved.Therefore, individual questions, if any, pale by comparison to the numerouscommon questions presented.

63. The injuries sustained by Members ofthe Class flow, in each instance,from a common nucleus of operative facts. In each case, Linkedln caused orpermitted the unauthorized appropriation of the Plaintiff and the Class Members'names, photographs, likenesses, or identities without adequate or any notice,consent, or opportunity to withdraw from participation.

64. The Web site that each member of the class used was substantially thesame with similar language, terms of use, and disclosures.




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84. As described herein, LinkedIn's nonconsensual use of its Members'names, photographs, and likenesses is a violation of California's Common LawRight ofPublicity, the California Computer Fraud and Abuse Act, the CaliforniaComprehensive Data Access and Fraud Act, the California Invasion of PrivacyAct, and the California Consumer Remedies Act.

85. These violations satisfy the "unlawful" prong ofthe UnfairCompetition Law ("UCL"), Cal. Bus. & Prof. Code. 17200, et seq.

86. Specifically, LinkedIn violated the "fraudulent" prong of the UCL byintentionally and knowingly misrepresenting that Members have full control toprevent their name and appearance in LinkedIn advertisements, includingendorsement emails sent by LinkedIn to third parties. LinkedIn intentionallymisrepresented a Member's ability to prevent his or her appearance and name inadvertisements so Linkedln could enjoy substantial profits by having usersunwittingly endorse LinkedIn to third parties through such advertisement emails.Plaintiffs justifiably relied upon those misrepresentations when deciding to joinand utilize LinkedIn. Plaintiffs suffered damages of deprivation ofmoney earnedby the misrepresentations, the amount to be proven at trial.

87. LinkedIn violated the "unfair" prong of the UCL by leading Membersto believe that repeated emails would not be sent to third parties containing theirnames and likenesses without their permission, then encouraging Members toutilize LinkedIn in such a way that allowed Linkedln to access Members' externalemail accounts and send endorsement emails to email addresses contained thereinand providing no warning that LinkedIn would send an endorsement email to eachemail address harvested from Members' external email accounts.

88. Linkedln violated the "unfair" prong of the UCL by intentionallyprofiting from the nonconsensual endorsements extracted from Members withoutsharing those profits with those Members.




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89. LinkedIn's unfair, deceptive, and fraudulent practices originated fromand/or occurred primarily in California. Decisions concerning the creation of theendorsement email advertising scheme were made in California, LinkedInmaintains all or a substantial part of its computer systems that serve LinkedIn'swebsite in California, and all or a substantial part of the code and content thatcreate and/or comprise endorsement email advertisements is developed anddeployed within and from California.

90. Pursuant to Cal. Bus. & Prof. Code 17203, Plaintiffs seek an orderof this Court permanently enjoining LinkedIn from continuing to engage in theunlawful, unfair, and fraudulent conduct described herein. Plaintiffs seek an orderrequiring LinkedIn to (1) immediately cease the unlawful practices stated in thisComplaint, and (2) award Plaintiff and the Class reasonable costs and attorneys'fees pursuant to Cal. Code of Civ. Proc. 1021.5.

91. Plaintiffs have a vested monetary interest in their appearance inLinkedIn's repeated advertisements, and LinkedIn has deprived them ofthatinterest.

92. Plaintiffs each lost money to which they were entitled in the form ofcompensation for the use of their images and names, and in which they had avested interest, by virtue ofLinkedIn's conduct. They are entitled to restitution ofsuch sums.

THIRD CAUSE OF ACTION(Stored Communications Act)

93. Plaintiffs incorporate each of the foregoing allegations as if fully setforth herein.

94. The ECPA broadly defines an "electronic communication" as "anytransfer of signs, signals, writing, images, sounds, data, or intelligence of anynature transmitted in whole or in part by a wire, radio, electromagnetic,photoelectronic or photooptical system that affects interstate or foreign commerce.




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Linked in Complaint

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Transcript of Linked in Complaint