Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 1 of 18 1 2 3 4 5 6 Ann Marie Mortimer (State Bar No. 169077) amortimer@HuntonAK.com Jason J. Kim (State Bar No. 221476) kimj@HuntonAK.com HUNTON ANDREWS KURTH LLP 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Telephone: (213) 532-2000 Facsimile: (213) 532-2020 7 8 Attorneys for Plaintiffs FACEBOOK, INC. and INSTAGRAM, LLC Hunton Andrews Kurth LLP 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 9 10 UNITED STATES DISTRICT COURT 11 NORTHERN DISTRICT OF CALIFORNIA 12 SAN FRANCISCO DIVISION 13 14 FACEBOOK, INC., a Delaware corporation and INSTAGRAM, LLC, a Delaware limited liability company, 15 18 v. 20 AREND NOLLEN, LEON HEDGES, DAVID PASANEN, and SOCIAL MEDIA SERIES LIMITED, 21 Defendants. 19 COMPLAINT; DEMAND FOR JURY TRIAL Plaintiffs, 16 17 CASE NO.: 3:19-cv-02262 22 23 24 25 26 27 28 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 2 of 18 1 2 Plaintiffs Facebook, Inc. (“Facebook”) and Instagram, LLC (“Instagram”), allege the following: 3 Hunton Andrews Kurth LLP 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 4 INTRODUCTION 1. Since at least July 9, 2018, to the present, Defendants Arend Nollen, Leon 5 Hedges, David Pasanen, and Social Media Series Limited, have operated an unlawful 6 business using the website Likesocial.co. Defendants’ business artificially inflates the 7 “likes,” “views,” and “followers” of Instagram accounts (known as “fake 8 engagement”). Defendants use a network of computers or “bots” and Instagram 9 accounts to deliver automated likes to their customers’ Instagram accounts, in violation 10 of Instagram’s Terms of Use (“TOU”), Community Guidelines, and California and 11 federal law. Through their business, Defendants interfered and continue to interfere 12 with Instagram’s service, create an inauthentic experience for Instagram users, and 13 attempt to fraudulently influence Instagram users for their own enrichment. Facebook 14 and Instagram bring this action for injunctive relief to stop any continued and future 15 misuse of its platform by Defendants in violation of Instagram’s TOU and Community 16 Guidelines. Facebook and Instagram also bring this action to obtain compensatory, 17 punitive, and exemplary damages under California Penal Code § 502 and the Computer 18 Fraud and Abuse Act, 18 U.S.C. § 1030. 19 20 21 22 PARTIES 2. Plaintiff Facebook is a Delaware corporation with its principal place of business in Menlo Park, California. 3. Plaintiff Instagram is a Delaware limited liability company with its 23 principal place of business in Menlo Park, California. Instagram is a subsidiary of 24 Facebook. 25 4. Defendant Nollen is a resident of Upper Hutt, New Zealand. Exhibit 1. 26 5. Defendants Hedges and Pasanen are residents of Lower Hutt, New 27 Zealand. Exhibits 2 and 3. 28 1 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 3 of 18 1 2 3 Hunton Andrews Kurth LLP Defendant Social Media Series Limited (“Social Media Series”) is a New Zealand limited liability company. Exhibit 4. 7. On or about January 8, 2016, Defendants Nollen, Hedges, and Pasanen 4 incorporated and registered Social Media Series as a New Zealand limited company. 5 Exhibits 4 and 5. Defendants Nollen, Hedges, and Pasanen each own 33% of Social 6 Media Series. Exhibits 5-8. And each Defendant has served in the role of Director of 7 Social Media Series since January 8, 2016. Exhibits 1-5. According to corporate 8 registration documents, the company has an office located at 9 McCarthy Grove, 9 Clouster Park, Upper Hutt, 5018 New Zealand. Exhibit 4. 10 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 6. 11 12 8. Since on or about July 9, 2018, Defendants controlled and operated the website Likesocial.co through Social Media Series Limited. 9. At all times material to this action, each Defendant was the agent, 13 employee, partner, alter ego, subsidiary, or coconspirator of and with the other 14 Defendants, and the acts of each Defendant were in the scope of that relationship. In 15 doing the acts and failing to act as alleged in this Complaint, each Defendant acted with 16 the knowledge, permission, and the consent of each of the other Defendants; and, each 17 Defendant aided and abetted the other Defendants in the acts or omissions alleged in 18 this Complaint. 19 20 21 22 JURISDICTION AND VENUE 10. The Court has federal question jurisdiction over the federal causes of action alleged in this Complaint pursuant to 28 U.S.C. § 1331. 11. The Court has supplemental jurisdiction over the state law causes of action 23 alleged in this Complaint pursuant to 28 U.S.C. § 1367 because these claims arise out 24 of the same nucleus of operative fact as Facebook and Instagram’s federal claim. 25 12. In addition, the Court has jurisdiction over all the causes of action alleged 26 in this Complaint pursuant to 28 U.S.C. § 1332 because complete diversity between the 27 Plaintiffs and each of the named Defendants exists, and because the amount in 28 controversy exceeds $75,000. 2 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 4 of 18 1 Defendant personally used Instagram, their business used thousands of Instagram 3 accounts, and, accordingly, they agreed to Instagram’s TOU. Instagram’s TOU require 4 Defendants to submit to the personal jurisdiction of this Court for litigating any claim, 5 cause of action, or dispute with Instagram. 14. In addition, the Court has personal jurisdiction because Defendants 7 knowingly directed their actions at Facebook and Instagram, which have their principal 8 place of business in California. For example, Defendants’ entire business model 9 depends on accessing and using Instagram in order to artificially manipulate Instagram 10 Hunton Andrews Kurth LLP The Court has personal jurisdiction over Defendants because each 2 6 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 13. 11 accounts in exchange for money. 15. Venue is proper in this Judicial District pursuant to 28 U.S.C. § 1391(b), 12 as the threatened and actual harm to Facebook and Instagram occurred in this District. 13 Venue is also proper with respect to each of the Defendants pursuant to 14 28 U.S.C. §1391(c)(3) because none of the Defendants resides in the United States. 15 16. Pursuant to Civil L.R. 3-2(c), this case may be assigned to the San 16 Francisco Division because Facebook and Instagram are located in San Mateo County. 17 FACTUAL ALLEGATIONS 18 A. Background on Instagram and Facebook 19 17. Facebook is a social networking website and mobile application that 20 enables its users to create their own personal profiles and connect with each other on 21 their personal computers and mobile devices. As of December 2018, Facebook daily 22 active users averaged 1.52 billion and monthly active users averaged 2.32 billion, 23 worldwide. Facebook has several products, including Instagram. 24 18. Instagram is a photo and video sharing service, mobile application, and 25 social network. Instagram users can post photos and videos to their profile. They can 26 also view, comment on, and like posts shared by others on Instagram. As of June 2018, 27 Instagram had over one billion active accounts. 28 3 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 5 of 18 1 19. 2 photo and choose to “like” it. For private accounts, followers of the account can see the 3 post. For public accounts, anyone can see the post. When a photo is liked, that like can 4 be seen by anyone who can see the post. For marketing and other commercial purposes, 5 certain Instagram users strive to increase the number of followers, views, and likes they 6 receive to increase their visibility and popularity on Instagram. 7 Hunton Andrews Kurth LLP 20. Instagram users can gain followers, views, and likes, but only from other 8 registered Instagram users. If a visitor to Instagram does not have an Instagram account 9 and tries to like a post, the visitor is redirected to the Instagram login page to enter their 10 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 When an Instagram user posts a photo, other Instagram users can view the Instagram credentials or to create a new Instagram account. 11 21. Everyone who uses Instagram agrees to Instagram’s TOU1 and other rules 12 that govern access to and use of Instagram, including Instagram’s Community 13 Guidelines.2 The Instagram TOU state that because Instagram is a Facebook product, 14 the Instagram TOU constitute an agreement between the Instagram users and 15 Facebook.3 16 22. Since at least April 2018, Instagram’s TOU prohibit users from (a) 17 “do[ing] anything unlawful, misleading, or fraudulent or for an illegal or unauthorized 18 purpose;” (b) “interfering or impairing the intended operation of [Instagram];” (c) 19 “[a]ttempt[ing] to buy, sell, or transfer any aspect of [an Instagram] account;” (d) 20 “creating accounts or collecting information in an automated way . . . ;” and (e) “violate 21 (or help or encourage others to violate) [Instagram] terms or their policies including the 22 Instagram Community Guidelines.” 23 24 23. In addition, Instagram’s Community Guidelines prohibit users from artificially collecting positive account attributes (i.e., likes, followers, and shares). 25 26 27 28 Instagram TOU can be found at https://help.instagram.com/581066165581870. Instagram Community Guidelines can be found at https://help.instagram.com/477434105621119. 3 See https://help.instagram.com/581066165581870. 4 1 2 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 6 of 18 1 B. 2 Defendants 3 24. websites offering fake engagement services including SocialEnvy.co, IGFamous.net, 5 and Likesocial.co. Facebook and Instagram have taken multiple enforcement actions 6 against Defendants for violating Instagram’s TOU and Community Guidelines, 7 including sending cease and desist letters and disabling Instagram accounts associated 8 with Defendants and their websites. 1. 10 Hunton Andrews Kurth LLP Since on or about July 23, 2015, Defendants have operated various 4 9 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Facebook and Instagram’s Past Enforcement Actions against 25. SocialEnvy.co and IGFamous.net According to corporate records, in 2015, Defendants Nollen and Hedges 11 were the sole and equal shareholders of an entity called Social Envy Limited. Exhibits 12 9-11. Social Envy Limited was incorporated and registered as a New Zealand Limited 13 Company. Exhibit 9. Social Envy Limited is registered at 9 McCarthy Grove, Clouster 14 Park, Upper Hutt, 5018 NZ, which is the same address used by Social Media Series. 15 Exhibits 4 and 9. 16 26. Between July 23, 2015, and February 2018, Defendants Nollen and Hedges 17 controlled and operated the website SocialEnvy.co4 through Social Envy Limited. 18 SocialEnvy.co sold artificial Instagram views and other fake engagement services. 19 Exhibits 12 and 13. 20 27. Between December 2, 2015, and February 2018, Defendants Nollen and 21 Hedges controlled and operated the website IGFamous.net through Social Envy 22 Limited. IGFamous.net sold artificial Instagram likes and other fake engagement 23 services. Exhibit 14. 24 28. On February 20, 2018, Facebook and Instagram sent a cease and desist 25 letter to Defendants Nollen and Hedges for operating SocialEnvy.co and IGFamous.net. 26 Exhibit 15. At that time, Instagram also disabled multiple Instagram accounts 27 28 4 Socialenvy.co is presently operated by individuals unassociated with Defendants. 5 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 7 of 18 1 associated with SocialEnvy.co and Defendants Nollen and Hedges. Some of those 2 accounts had been used by Defendants Nollen, Hedges, and Pasanen. 3 29. 4 demanded that Defendants Hedges and Nollen stop violating Instagram’s TOU, 5 including: 6  Misleading Instagram users; 7  Creating false or duplicate profiles; 8  Collecting user credentials; 9  Automating interactions between profiles that have no prior Hunton Andrews Kurth LLP 10 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 In the February 20, 2018 cease and desist letter, Facebook and Instagram 11 relationship;  Facilitating or encouraging others to violate Instagram’s [TOU]. 12 The February 20, 2018 cease and desist letter also informed Defendants that their 13 actions may have violated state and federal laws, including Computer Fraud and Abuse 14 Act, 18 U.S.C. § 1030, and California Comprehensive Computer Data Access and Fraud 15 Act, Cal. Penal Code § 502(c). 16 30. After receiving the February 20, 2018 cease and desist letter, Defendants 17 stopped offering fake engagement services on Socialenvy.co and IGFamous.net but 18 began selling fake engagement services on other websites, including Likesocial.co. 19 2. 20 21 31. Likesocial.co Since on or about July 9, 2018, Defendants controlled and operated the website Likesocial.co through Social Media Series. 22 32. On December 18, 2018, Facebook and Instagram sent a cease and desist 23 letter to Defendants Nollen and Hedges for offering fake engagement services through 24 Likesocial.co. Exhibit 16. The December 2018 letter referenced the February 20, 2018 25 letter: 26 27 28 We first contacted you on February 20, 2018 demanding that you stop selling Instagram Followers and Likes through your websites SocialEnvy.co and IGFamous.net. Facebook is aware that you have continued your improper activities through your current websites including but not limited to, LikeSocial.co, Social10x.com, smseries.co.nz, and SocialSteeze.net, where you continue to sell services that automate actions 6 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 8 of 18 1 2 Hunton Andrews Kurth LLP This violates 3 In the December 2018 letter, Facebook and Instagram again demanded that Defendants 4 stop abusing Instagram and violating Instagram’s TOU. Facebook and Instagram 5 advised Defendants that their conduct may have violated the California Penal Code § 6 502(c) and 18 U.S.C. § 1030. Facebook and Instagram also revoked Defendants’ access 7 to Facebook and Instagram at that time and told Defendants that “you, your agents, 8 employees, affiliates, or anyone acting on your behalf . . . may not access the Facebook 9 or Instagram websites, Platforms, or networks for any reason whatsoever.” 10 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 on Instagram including, followers, likes, and views. Instagram’s terms of service. 33. In addition, Facebook and Instagram have taken other enforcement actions 11 against Defendants, including blocking millions of artificial likes originating from 12 Defendants’ service and disabling accounts associated with Defendants. 13 34. In response to Facebook and Instagram’s past enforcement actions, 14 Defendants attempted to conceal their association with the website Likesocial.co. For 15 example, in the terms of service for Likesocial.co affiliates, Defendants used the 16 company name “New Zealand Like Social LLC.” Exhibit 17. In fact, no such company 17 is registered in New Zealand. Defendants also used a domain privacy service to register 18 the domain Likesocial.co. 19 C. Defendants Used an Automated Process, Bots, and Instagram 20 Accounts to Artificially Inflate Instagram Users’ Likes and Interfere 21 with Instagram’s Service and Computer Network 22 35. Since July 2018 and continuing to the present, Defendants have marketed 23 their fake engagement services and conducted financial transactions with their 24 customers on the website Likesocial.co. Exhibits 18 and 19. Defendants offered 25 “automatic Instagram likes” using a “system [that] monitors your Instagram account 26 24/7 and detects your latest posts within seconds. Instagram Likes start delivering to 27 your post immediately after it is detected.” Exhibit 20. 28 7 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 9 of 18 1 36. Defendants charge a fixed weekly price for their fake engagement services. 2 The cost of the service depends on the number of automatic likes being purchased and 3 ranges from $10 to $99 per week. The image shown below lists Defendants’ pricing 4 structure as of March 19, 2019, (Exhibit 19), from their website Likesocial.co: 5 6 7 8 9 Hunton Andrews Kurth LLP 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 10 11 12 13 14 15 16 17 37. Defendants used PayPal to accept payments for their services. The PayPal 18 account used to receive payments from customers was in the name of Social Media 19 Series. Exhibits 21 and 22. 20 38. Defendants used a network of bots and Instagram accounts that they 21 controlled to deliver millions of automated likes to their customers. Some of the 22 Instagram accounts controlled by Defendants were responsible for tens of thousands of 23 likes on a daily basis. 24 39. For example, on November 28, 2018, after purchasing 500 likes on 25 Likesocial.co, an Instagram user posted a photo of an empty gym on their Instagram 26 account. Although the account had no followers and the photo had no comments, the 27 photo received approximately 500 likes within seconds. All the likes came from 28 8 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 10 of 18 1 Defendants’ network of Instagram accounts using two internet service providers located 2 in Turkey. 3 40. 4 were posted by the same Likesocial.co customer. 5 followers and the photos had no comments, each photo received between 500 and 600 6 likes shortly after the photos were posted. Defendants used a network of thousands of 7 Instagram accounts to deliver these likes. 8 D. 9 Hunton Andrews Kurth LLP 10 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 Between on or about March 14, 2019 and March 22, 2019, multiple photos Although the account had no Defendants Unjustly Enriched Themselves and Their Unlawful Acts Have Caused Damage and a Loss to Facebook and Instagram 41. Defendants’ breaches of Instagram’s TOU and Community Guidelines 11 have caused Facebook and Instagram substantial harm. Defendants interfered and 12 continue to interfere with Instagram’s service and burden Facebook and Instagram’s 13 computer network. Moreover, Defendants created and continue to create an inauthentic 14 experience for Instagram users who used, viewed, and relied on Defendants’ fake 15 engagement services, thus damaging Instagram’s brand. 16 17 18 42. Defendants’ actions injured Facebook and Instagram’s reputation, public trust, and goodwill. 43. Facebook and Instagram have suffered damages attributable to the efforts 19 and resources it has used to address this Complaint, investigate and mitigate 20 Defendants’ illegal conduct, and attempt to identify, analyze, and stop their fraudulent 21 and injurious activities. 22 23 44. Since July 2018, Defendants unjustly enriched themselves at the expense of Facebook and Instagram in the amount of approximately $9,430,000. 24 FIRST CAUSE OF ACTION 25 (Breach of Contract) 26 27 45. Facebook and Instagram incorporate all other paragraphs as if fully set forth herein. 28 9 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 11 of 18 1 agreed to Instagram’s TOU and Community Guidelines. The Instagram service is 3 owned and operated by Facebook, Inc. Since April 2018, the Instagram TOU have 4 stated that Instagram is a Facebook product and that the Instagram TOU constitute an 5 agreement between Instagram users and Facebook. 47. In addition, since at least July 2018, Defendants used thousands of 7 Instagram accounts to provide their services, which were also governed by Instagram’s 8 TOU and Community Guidelines. Because Defendants’ unlawful business used and 9 targeted Instagram users, each Defendant agreed to Instagram’s TOU and Community 10 Hunton Andrews Kurth LLP Each individual Defendant created a personal Instagram account and 2 6 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 46. 11 Guidelines. 48. Social Media Series, through the website Likesocial.co, continually used 12 Instagram and caused it to be accessed and used to conduct Defendants’ fraudulent 13 business. As the shareholders and Directors of Social Media Services, which operates 14 the website Likesocial.co, each individual Defendant was bound by Instagram’s TOU 15 and Community Guidelines. 16 49. Despite each Defendant’s agreement to Instagram’s TOU and Community 17 Guidelines, they repeatedly breached them. Not only did Defendants and their fake 18 engagement service violate Instagram’s TOU and Community Guidelines, they have 19 helped other Instagram users violate them—itself a violation of the TOU and 20 Community Guidelines. 21 50. Defendants breached Instagram’s TOU and Community Guidelines by 22 taking the actions described above, including by accessing Instagram to fraudulently 23 and artificially inflate the likes associated with certain Instagram accounts using 24 thousands of other Instagram accounts, all in an attempt to influence other Instagram 25 users and enrich themselves while damaging Facebook and Instagram. 26 27 51. Facebook and Instagram have performed all conditions, covenants, and promises required of it in accordance with its agreements with Defendants. 28 10 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 12 of 18 1 damages in the amount of at least $9,430,000, in addition to an amount to be determined 3 at trial. 4 SECOND CAUSE OF ACTION 5 (California Penal Code § 502) 7 8 Hunton Andrews Kurth LLP Defendants’ many breaches have caused Facebook and Instagram to incur 2 6 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 52. 53. Facebook and Instagram incorporate all other paragraphs as if fully set forth herein. 54. Defendants knowingly accessed and without permission otherwise used 9 Facebook and Instagram’s data, computers, computer system, and computer network in 10 order to (A) devise or execute any scheme or artifice to defraud and deceive, and (B) to 11 wrongfully control or obtain money, property, or data, in violation of California Penal 12 Code § 502(c)(1). 13 55. Defendants knowingly and without permission used or caused to be used 14 Facebook and Instagram’s computer services in violation of California Penal Code 15 § 502(c)(3). 16 56. By artificially inflating certain Instagram users’ likes and impairing the 17 intended operation of Instagram, Defendants knowingly and without permission 18 disrupted or caused the disruption of computer services of Facebook and Instagram’s 19 computers, computer systems, and/or computer networks in violation of California 20 Penal Code § 502(c)(5). 21 57. Defendants knowingly and without permission accessed and caused to be 22 accessed Facebook and Instagram’s computers, computer systems, and/or computer 23 networks in violation of California Penal Code § 502(c)(7). Defendants accessed 24 Facebook and Instagram’s computer network after Facebook and Instagram disabled 25 their Instagram accounts, and sent cease and desist letters to the Defendants revoking 26 their access. 27 28 58. Because Facebook and Instagram suffered damages and a loss as a result of Defendants’ actions and continues to suffer damages as result of Defendant’s actions, 11 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 13 of 18 1 Facebook and Instagram are entitled to compensatory damages, in the amount of at least 2 $9,430,000, attorney fees, and any other amount of damages proven at trial, and 3 injunctive relief under California Penal Code § 502(e)(1) and (2). 4 Hunton Andrews Kurth LLP Because Defendants willfully violated California Penal Code § 502, and 5 there is clear and convincing evidence that Defendants committed “fraud” as defined 6 by section 3294 of the Civil Code, Facebook and Instagram are entitled to punitive and 7 exemplary damages under California Penal Code § 502(e)(4). 8 THIRD CAUSE OF ACTION 9 (Computer Fraud and Abuse Act, 18 U.S.C. § 1030) 10 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 59. 11 12 60. Facebook and Instagram incorporate all other paragraphs as if fully set forth herein. 61. Defendants’ access and use of Facebook and Instagram’s computers and 13 computer systems was unauthorized because Defendants accessed Facebook and 14 Instagram’s computer network after Facebook and Instagram disabled their Instagram 15 accounts and sent cease and desist letters to Defendants revoking their access. 16 17 18 62. Facebook and Instagram computers and servers are protected computers as defined by 18 U.S.C. § 1030(e)(2). 63. Defendants violated 18 U.S.C. § 1030(a)(4) because they knowingly and 19 with intent to defraud accessed Facebook and Instagram-protected computers by 20 sending unauthorized commands to Facebook and Instagram computers. Defendants 21 sent the commands to Facebook and Instagram computers to manipulate Instagram’s 22 service by fraudulently inflating likes of certain Instagram accounts. Defendants did 23 these acts in exchange for profit. 24 64. Defendants violated 18 U.S.C. § 1030(a)(5)(A) because they knowingly 25 and intentionally caused the transmission of a program, information, code, or command, 26 and, as a result of such conduct, intentionally damaged Facebook and Instagram- 27 protected computers. 28 12 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 14 of 18 1 a protected computer without authorization, and, as a result of such conduct, recklessly 3 causing damage to Facebook and Instagram-protected computers. 66. Defendants violated 18 U.S.C. § 1030(a)(5)(C) by intentionally accessing 5 a protected computer without authorization, and, as a result of such conduct, causing 6 damage to Facebook and Instagram-protected computers and a loss. 7 8 9 10 Hunton Andrews Kurth LLP Defendants violated 18 U.S.C. § 1030(a)(5)(B) by intentionally accessing 2 4 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 65. 11 67. Defendants violated 18 U.S.C. § 1030(b) by conspiring or attempting to commit the violation alleged in the preceding paragraph. 68. Defendants’ conduct has caused a loss to Facebook and Instagram during a one-year period in excess of $5,000. 69. Defendants’ actions caused Facebook and Instagram to incur losses and 12 other economic damages, including, among other things, the expenditure of resources 13 to investigate and respond to Defendants’ fraudulent scheme. Facebook and Instagram 14 are entitled to be compensated for losses and damages in the amount of at least 15 $9,430,000, and any other amount proven at trial. 16 70. Facebook and Instagram have no adequate remedy at law that would 17 prevent Defendants from continuing their unlawful scheme. Permanent injunctive relief 18 is therefore warranted. 19 FOURTH CAUSE OF ACTION 20 (Unjust Enrichment) 21 22 23 24 25 71. Facebook and Instagram incorporate all other paragraphs as if fully set forth herein. 72. Defendants’ acts as alleged herein constitute unjust enrichment of the Defendants at Facebook and Instagram’s expense. 73. Defendants accessed and used, without authorization or permission, 26 Facebook and Instagram’s service, platform, and computer network, all of which belong 27 to Facebook and Instagram. 28 13 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 15 of 18 1 computer network to, among other things, defraud and deceive Instagram users, 3 artificially inflate certain Instagram users’ likes, impair the intended operation of 4 Instagram, interfere with Instagram’s service, platform, and computer network, and 5 wrongfully obtain money from the operation of their unlawful business. 7 8 9 10 Hunton Andrews Kurth LLP Defendants used Facebook and Instagram’s service, platform, and 2 6 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 74. 75. Defendants received a benefit by profiting off of their unauthorized use of Facebook and Instagram’s service, platform, and computer network. 76. Defendants’ retention of the profits derived from their unauthorized use of Facebook and Instagram’s service, platform, and computer network would be unjust. 77. Defendants’ unauthorized use of Facebook and Instagram’s service, 11 platform, and computer network has injured Facebook and Instagram’s reputation, 12 public-trust, and goodwill. 13 78. Defendants’ unauthorized use of Facebook and Instagram’s service, 14 platform, and computer network has damaged Facebook and Instagram, including but 15 not limited to the time and money spent investigating and mitigating Defendants’ 16 unlawful conduct. 17 79. Facebook and Instagram seek injunctive relief and damages in an amount 18 to be proven at trial, as well as disgorgement of Defendants’ ill-gotten profits in the 19 amount of approximately $9,430,000. 20 80. As a direct result of Defendants’ unlawful actions, Facebook and 21 Instagram have suffered and continue to suffer irreparable harm for which there is no 22 adequate remedy at law, and which will continue unless Defendants’ actions are 23 enjoined. 24 25 26 27 28 REQUEST FOR RELIEF WHEREFORE, Plaintiffs Facebook and Instagram request judgment against Defendants as follows: 1. That the Court enter judgment against Defendants that Defendants have: a. Violated the Computer Fraud and Abuse Act, in violation of 14 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 16 of 18 1 18 U.S.C. 1030; 2 b. Violated the California Comprehensive Computer Data Access and 3 Fraud Act, in violation of California Penal Code § 502; 4 c. Breached Defendants’ contracts with Facebook and Instagram in 5 violation of California law; 6 d. Been unjustly enriched at the expense of Facebook and Instagram in 7 Hunton Andrews Kurth LLP 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 8 violation of California law. 2. That the Court enter a permanent injunction enjoining and restraining 9 Defendants and their agents, servants, employees, successors, and assigns, and all other 10 persons acting in concert with or conspiracy with any of them or who are affiliated with 11 Defendants from: 12 a. Accessing or attempting to access Facebook and Instagram’s service, 13 platform, and computer systems; 14 b. Creating or maintaining any Instagram accounts in violation of 15 Instagram’s TOU; 16 c. Engaging in any activity that disrupts, diminishes the quality of, 17 interferes with the performance of, or impairs the functionality of 18 Facebook and Instagram’s service, platform, and computer systems; and 19 d. Engaging in any activity, or facilitating others to do the same, that 20 violates Instagram’s TOU, Community Guidelines, or other related 21 policy referenced herein. 22 3. That Facebook and Instagram be awarded damages, including, but not 23 limited to, compensatory, statutory, and punitive damages, as permitted by law and in 24 such amounts to be proven at trial. 25 4. That Defendants account for, hold in constructive trust, pay over to 26 Facebook and Instagram, and otherwise disgorge profits derived from Defendants’ 27 unjust enrichment, which is estimated to be $9,430,000. 28 15 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 17 of 18 1 2 3 4 5. That Facebook and Instagram be awarded its reasonable costs, including reasonable attorneys’ fees. 6. That Facebook and Instagram be awarded pre- and post-judgment interest as allowed by law. 5 7. 6 just and proper. That the Court grant all such other and further relief as the Court may deem 7 8 Dated: April 25, 2019 HUNTON ANDREWS KURTH LLP 9 Hunton Andrews Kurth LLP 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 10 By: 11 12 13 /s/ Ann Marie Mortimer Ann Marie Mortimer Jason J. Kim Attorneys for Plaintiffs FACEBOOK, INC. and INSTAGRAM, LLC 14 Jessica Romero Michael Chmelar Stacy Chen Platform Enforcement and Litigation Facebook, Inc. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Case 3:19-cv-02262 Document 1 Filed 04/25/19 Page 18 of 18 1 2 JURY TRIAL DEMAND Plaintiffs hereby demand a trial by jury on all issues triable to a jury. 3 4 Dated: April 25, 2019 HUNTON ANDREWS KURTH LLP 5 6 By: 7 8 9 /s/ Ann Marie Mortimer Ann Marie Mortimer Jason J. Kim Attorneys for Plaintiffs FACEBOOK, INC. and INSTAGRAM, LLC Hunton Andrews Kurth LLP 550 South Hope Street, Suite 2000 Los Angeles, California 90071-2627 10 Jessica Romero Michael Chmelar Stacy Chen Platform Enforcement and Litigation Facebook, Inc. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 099900.12852 EMF_US 73690998v1 17 COMPLAINT; DEMAND FOR JURY TRIAL 3:19-cv-02262 Facebook Inc. et al v. Nollen et al, Docket No. 3:19-cv-02262 (N.D. Cal. Apr 25, 2019), Court Docket General Information Court United States District Court for the Northern District of California; United States District Court for the Northern District of California Federal Nature of Suit Other Statutory Actions[890] Docket Number 3:19-cv-02262 © 2019 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 19