UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSEPH RUBIN, individually and on
behalf of all other similarly situated,
Plaintiff
vs.
INTUIT INC.,
Defendants
No. 00 CIV. 1778
CLASS ACTION
COMPLAINT FOR VIOLATION OF 18
U.S.C. §2510, ET SEQ., 18
U.S.C. §2701, ET SEQ., 18
U.S.C. §1030, ET SEQ. AND FOR
INVASION OF PRIVACY
DEMAND FOR JURY TRIAL
Plaintiff, by his undersigned attorneys, for his class action complaint, alleges the claims set forth herein. Plaintiff's claims as to himself and his own actions, as set forth in ¶4, are based upon personal knowledge. All other allegations are based upon information and belief pursuant to the investigation of counsel. Based upon such investigation, plaintiff believes that substantial evidentiary support exists for thc allegations herein or that such allegations are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
1. Plaintiff brings this action on behalf of himself and all Other users of Intuit Inc.'s
("Intuit'') Quicken.com Web site, whose personal and private information was intercepted, disclosed and/or transferred to entities other than Intuit. Plaintiff seeks injunctive relief and damages for defendant's practice of secretly intercepting, disclosing, and/or transferring consumers' confidential information with our their knowledge or consent or without proper disclosure.
2. This Court has jurisdiction over plaintiff's claims pursuant to 28 U.SC. §§1331and 1367, which confer original jurisdiction upon this Court for all civil actions arising under the laws of thc United States.
3. Venue is proper in this Court pursuant to 28 U.8.C. §1391 because defendant
Intuit provided Internet-related products and services to consumers in this District and throughout the United States and conducted business in this District. The plaintiff is also a resident of this District.
4. Plaintiff Joseph Rubin, a resident of New York, brings this action on behalf of
himself and all others similarly situated. Mr. Rubin has utilized Intuit's Quicken.com Web site and related services for a least the last year and as a result thereof, believes he has had his personal and confidential information secretly intercepted, disclosed and transmitted to third-party entities without his consent.
5. Defendant Intuit is a corporation organized under the laws of Delaware, with its
principal place of business located at 2535 Garcia Avenue, Mountain View, California. Intuit is the self-proclaimed leader in e-finance, including financial software and Web-based financial services for consumers and small businesses. Intuit develops and markets QuickBooks, a popular small business accounting software package; Quicken, one of the leading personal financial software packages; and TurboTax, a widely-used tax preparation software package. Intuit, through its Quicken.com Web site, also provides Web-based financial tools, online tax preparation and filing and online mortgages. Intuit also offers online bill presentment and payment. Intuit's Quicken.com Web site (www.quicken.com) is a popular financial site, offering a comprehensive set of financial news, information and tolls, including insurance, mortgage, investment and tax preparation services. Intuit's products and services enable individuals and small businesses to manage their financial information online. However, in operating its Quicken.com Web site, Intuit provides third-party advertisers access to its Web sites in order to generate additional traffic and gales.
6. Plaintiff brings this action against defendant on his own behalf and on behalf of
all other persons similarly situated pursuant to Rule 23 of the Federal Rules of Civil Procedure. The class that plaintiff seeks to represent is comprised of all persons in the United States who have used Intuit's Quicken.com Web site whose personal and private information was intercepted, intercepted, disclosed, ad/or transferred to entities other than Intuit (the "Class’’).
7. The Class is sufficiently numerous as it includes millions of persons who use Intuit's Quicken.com Web site services and products nationwide. Thus, the individual joinder of such persons in a single action is impracticable. The disposition of the Class members claims in this class action will substantially benefit both the parties and the Court.
8. There is a well-defined community of interest in the questions of law and fact
involved in this action and affecting the parties. These common questions that may affect only individual Class members. Among these common questions of law and fact are:
(a) Whether the defendant participated in
and/or committed or is responsible for the conduct complained of;
(b) whether defendant's conduct constitutes the violations of law alleged herein:
(c) whether Intuit's Quicken.com Web site services and products at issue have been intercepting, transmitting and/or disclosing the personal and private information of users without their knowledge and fully informed consent;
(d) whether the defendant divulged the contents of Class members' Intuit communications while in electronic storage;
(e) whether the defendant acted recklessly, with gross negligence, or negligently in its alleged violations of law;
(f) whether the defendant's conducl was willful and/or intentional;
(g) whether Class members are entitled to statutory damages and if so, in what amount;
(h) whether the Class members are entitled to injunctive and/or other equitable relief.
9. Plaintiff asserts claims that are typical of the claims of the entire Class, and all Class members have been subjected to the same wrongful conduct.
10. Plaintiff will fairly and adequately represent and protect the interests of other Class members and plaintiff has no interests antagonistic to or which irreconcilable conflict with those of other Class members. Plaintiff is committed to the vigorous prosecution of this action and has retained counsel experienced in litigation of this nature to represent the Class. Plaintiff anticipates no difficulty in the management of this litigation as a class action.
11. A class action is the only method for the fair and efficient adjudication of this controversy, Class members have suffered and will continue to suffer irreparable harm and damages as a result of defendant's wrongful conduct. Because of the nature of most of the individual Class members' claims, few, if any, could otherwise afford to seek legal redress against the defendant for the wrongs complained or herein, and a representative class action is therefore appropriate, the superior method or proceeding, and essential to the interests of justice. Absent a representative class action, Class members would continue to suffer losses for which they would have no practical remedy, many Class members would remain ignorant of the significant violations of privacy to which they have been exposed and the damages they have suffered or may suffer, and the defendant would unjustly retain both the proceeds of its ill-gotten gains and the wrongfully obtained data. Even if separate actions could be brought by individual members of the Class, the resulting multiplicity of lawsuits would cause undue hardship and expense for both the Court and the litigants, as well as create a risk of inconsistent or varying rulings and adjudications which might as a practical matter be dispositive of the interests of the other Class members who are not parties to such adjudications, may substantially impede their ability to protect their interests and/or which would establish incompatible standards of conduct for defendant.
12. Defendant has acted or refused to act on grounds generally applicable to the Class, making appropriate injunctive or declaratory relief with respect to the Class as a whole.
13. Notice of pendency of this action can be given either by regular mail or by publication over the Internet.
14. Defendant Intuit is the developer and manufacturer of personal finance computer software and operates numerous Internet Web sites that may be accessed on personal computers. Intuit's Quicken.com Web site advertises various products and services to generate additional traffic and sales at these sites. Intuit's Quicken.com Web sites provide financial services and tolls to millions of consumers, and can be accessed at http;//www intuit.com.
15. Intuit has a stated "Privacy Policy" on its Web site. Disregarding the fact that the "Privacy Policy" is buried in small print at the bottom of defendant's homepage and not adequately brought to the user's attention, defendant merely discloses to the public that certain information is requested from the user and may be transmitted to Intuit. What is not disclosed is that this personal and private information is also being clandestinely intercepted, disclosed and transferred to third-party advertisers whose products and services are utilized on Intuit’s Web sites.
16. At all relevant times, Intuit’s Quicken.com Web site contained a secret information-harvesting capacity which was not disclosed in the above mentioned privacy policy or otherwise made known to plaintiff for the Class members. This secret capacity is distance from and significantly more intrusive than the general information handling practices as represented by Intuit. In fact, this secret capacity works as a window into the Internet user’s activities, providing third-party advertisers with such information as the user’s name, address and confidential financial information.
17. This secret information-harvesting capacity allows defendant to provide third-party advertisers the ability to surreptitiously intercept plaintiff’s and Class members’ personal and private information and use this information for their own economic benefit. Defendant’s transgressions were unknown to plaintiff and the Class members and would require a computer programming expert to discover the defendant’s unlawful actions. In other words, the presence of this secret capacity was well camouflaged by the defendant, evidencing its knowledge of and intention to conceal the wrongdoing here at issue.
18. The personal and private information intercepted, disclosed and/or improperly transferred by defendant may include, but is not limited to, the following: (a) a user’s income; (b) a user’s name; (c) a user’s home address; (d) a user’s e-mail address; and (e) a myriad of other confidential financial information. In addition, the way Intuit’s Web site is constructed defendant permits third-party advertisers to intercept, procure and/or improperly transfer information users have entered on particular Web pages, thereby allowing the defendant to access a great deal more private and confidential information than listed above. Intuit permits third-party advertisers, through their advertising services and products, to track users activities across Intuit’s Web sites and obtain the confidential information as described above.
19. Through Intuit’s conduct, third-party advertisers intercept and obtain users’ personal and private information through the use of their advertising services and products on intuit’s Quicken.com Web site. Information users provide on certain areas of defendant’s Web site is automatically sent to the third-party advertisers. As part of the back-and-forth exchange of data that occurs when Class members visit Intuit’s Web site, Intuit communicates with the third-party advertisers’ computers. This communication process enables the interception and disclosure of a user’s personal and private information that the user provided to Quicken.com while using its online financial services.
20. At all relevant times, defendant intercepted, disclosed and/or transferred the contents of this personal and confidential information, stored such electronic information, and/or used such information for its own commercial purposes and permitted unauthorized access to confidential personal information.
21. Thus, through its relationships with advertisers located throughout the United States, defendant has secretly disclosed personal, private and confidential information form plaintiff and the Class members. This private information is protected from interception and disclosure by federal law.
22. Defendant Intuit has marketed and distributed prepackaged software products and has thereby induced millions of users to visit and use its financial Internet Web sites without disclosing the fact that it was secretly intercepting personal confidential information on its customers and transferring such sensitive information to third-party advertisers.
23. Consumers have legally protected privacy interest in the confidential data described above, and have an actual and reasonable expectation that defendant would either not access or would maintain the confidentially of that information. By secretly intercepting, disclosing and/or transferring consumers’ confidential information, defendant engaged in conduct that constitutes a serious invasion of privacy that is highly offensive and violates applicable federal laws. Such conduct is on-going and continues to this date.
(For Violation of 18 U.S.C. §2701, et seq.)
24. Plaintiff realleges and incorporates herein by reference the foregoing and following paragraphs as though set forth in full.
25. In violation of 18 U.S.C. §2701, et seq, defendant, by and through its widely used Quicken.com Web site, intentionally accessed without authorization and/or intentionally exceeded its authorization to access plaintiff’s and the Class members’ computer systems through which electronic communications systems are provided, and obtained access to their wire and electronic communications while in electronic storage in such computer systems and/or knowingly divulged or used the contents of such communications while in electronic storage.
26. Pursuant to 18 U.S.C. §2701, plaintiff and the Class members
are entitled to such preliminary or other equitable or declaratory relief as
may be appropriate at least $1,000 per Class member in statutory damages,
actual and punitive damages, costs and reasonable attorney’s fees, plus any
profits made by the defendant as a result of such violations of law.
(For Violation of U.S.C. §2510, et seq.)
27. Plaintiff realleges and incorporates herein by reference the foregoing and following paragraphs as though set forth in full.
28. In violation of 18 U.S.C. §2510, et seq, defendant intentionally intercepted, transmitted and/or disclosed plaintiff’s and the Class members’ electronic communications without such persons’ full authorization or consent to unauthorized third parties.
29. Pursuant to 18 U.S.C. §2520, plaintiff and each member of the Class is entitled to preliminary, equitable and declaratory relief as may be appropriate, statutory damages of the grater of $10,000 or $100 a day for each day of violation, actual and punitive damages, reasonable attorney’s fees and costs, plus any profits made by the defendant as a result of such violations of law.
(For Violation of 18 U.S.C. §1030, et seq.)
30. Plaintiff realleges and incorporates herein by reference the foregoing and following paragraphs as though set forth in full.
31. Defendant has intentionally and knowingly accessed and
caused the transmission of a program, information, code and/or command to
plaintiff’s and Class members’ protected computers without authorization in
violation of 18 U.S.C. §1030.
32. In so doing, defendant has intentionally caused loss to plaintiff and members of the Class in violation of 18 U.S.C. §1030.
33. The computers of plaintiff and members of the Class are used in interstate and foreign commerce and communication as defined by 18 U.S.C. §1030.
34. As a result, plaintiff and members of the Class are entitled to damages, injunctive relief, and other equitable relief, including costs and attorneys' fees.
(For Invasion of Privacy)
35. Plaintiff realleges and incorporates herein by reference the foregoing and following paragraphs as though set forth in full.
36. Defendant has knowingly, recklessly or negligently disclosed, exploited, misappropriated and/or engaged in widespread commercial usage of confidential and private financial information concerning the personal affairs of plaintiff and the Class members for defendant’s own benefit, without the consent of plaintiff and the class members. Such conduct constitutes a highly offensive and dangerous invasion of plaintiff’s and the Class members’ privacy.
37. As the plaintiff and the Class members did not voluntarily disclose their personal and private information to the defendant for the purpose of disseminating such information to third parties, such information was misappropriated by defendant. Plaintiff and the Class members provided such information without their knowledge, and they did not consent and would not have consented to having their personal and private information used for defendant’s commercial gain.
38. As a result thereof, plaintiff and the Class members
have been damaged by an amount according to proof at the time of trial and have
been irreparably harmed by such conduct.
WHEREFORE, plaintiff, on behalf of himself and all others similarly situated, prays for judgement and relief against the defendant as follows:
A. Declaring this action to be a proper class action pursuant to Rule 23 of the Federal Rules of Civil Procedure;
B. A temporary, preliminary or permanent order: (I) enjoining the defendant and its agents from conducting its business through the unlawful acts and practices described in this Complaint; (2) ordering the defendant and its agents to conduct a corrective advertising and information campaign advising consumers whose confidential data has already been disclosed how to prevent further unwanted intrusions; and (3) ordering the off-site storage, destruction and/or purging of all personal and confidential information collected or shared as a result ofdefendant's wrongful conduct;
C. An order requiring the defendant to disgorge all monies wrongfully obtained as alleged in this complaint and all profits derived by defendant as a result of the unlawful acts or practices and an order imposing an asset freeze or constructive trust on such monies.
D. Awarding plaintiff and the Class restitution, statutory damages, actual damages and punitive damages, as appropriate;
E. Pre- and post-judgment interest;
F. All costs and expenses, including attorneys' fees; and
G. Such other and further relief as this Court may deem necessary, proper and/or appropriate.landscape
Plaintiff demands a trial by jury.
Dated: New York, New York
March 8, 2000
STULL, STULL & BRODY
Jules Brody (IB 9151)
Aaron L. Brody (AB 5850)
6 East 45th Street
20 New York, New York 10017
(212) 687-7230
WEISS & YOURMAN
Joseph H. Weiss (JW 4534)
551 Fifth Avenue
Suite 1600
20 New York, New York 10176
(212) 682-3025
Attorneys for Plaintiff