Case3:12-cv-06482-NC 1 jrk@classactionlaw.com 3 Filed12/21/12 FINKELSTEIN & KRINSK LLP JEFFREY R. KRINSK (109234) 2 Documentl Pagel mlk@classactionlaw.com MARK L. KNUTSON NCL (131770) 6 '4-C 2 I^. ti 7 RL yv a ir' (246823) wrr@classactionlaw.com 501 West Broadway, Suite 1250 San Diego, CA 92101 Tel: (619) 238-1333 Fax: (619) 238-5425 7 I, 1 2 Attorneys for Plaintiff Lucy Funes 4 5 WILLIAM R. RESTIS 8 9 UNITED STATES DISTRICT COURT 10 NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION Case No. and on behalf 12 13 LUCY FUNES, Individually, of all others similarly situated, 14 C 12 CLASS ACTION Plaintiff, Are 6 4 82 COMPLAINT FOR: 15 20 BREACH OF CONTRACT VIOLATION OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 2. VIOLATION OF CALIFORNIA CIVIL CODE 3344; 3. BREACH OF BAILMENT 4. VIOLATION OF CAL. Bus. & PROF. 21 5. 1. 16 vs. 17 18 19 a Delaware and INSTAGRAM, LLC, Delaware LLC INSTAGRAM, INC., Corporation; Defendants. a CODE 22 17200, et seq.; DECLARATORY RELIEF PURSUANT TO THE FEDERAL DECLARATORY JUDGMENTS ACT, 28 U.S.C. 23 24 25 26 27 28 JURY TRIAL DEMANDED 2201 Case3:12-cv-06482-NC Lucy Funes ("Plaintiff' COMES NOW 1 Document1 of counsel- and Filed12/21/12 "Funes"), or information and belief, an Page2 of 27 individual who, based on the hereby complains against defendants 2 investigation 3 Instagram, Inc. and Instagram LLC, (collectively, "Instagram" or "Defendants") as follows: on INTRODUCTION 4 is Instagram 1. 5 6 California customers 7 challenges 8 unilateral 9 on or 10 while 11 customers' the changes to about web-based shift in property photographs rights their "Terms of Use" and irreparable harm resulting from January 19, 2013. The New Terms transfer valuable property rights Instagram's to into effect Instagram liability for commercially exploiting from any photographs and artistic content, while shielding Instagrarn The New Terms transfer to Instagram 2. and artistic content. This action (the "New Terms") that are scheduled to go simultaneously relieving Instagram 12 which Plaintiff and other photograph sharing platform, to host and share use proposed a an from legal liaibility. irrevocable "transferrable and sub- 13 licensable" worldwide license to the entirety of each customer's intellectual property and 14 personality, including the 15 grab for customer Property rights, Instagram's 16 prevent 17 statute of limitations to one year, and 18 in 19 a customers from court of law via (a) a customer's likeness and artistic content obtaining injunctive (the "Property"). New Terms seek to disclaim or equitable relief to ever In this same liability for damages, stop Instagram, limit all prevent customer's from challenging Instagram's conduct no-class-action arbitration clause. Instagram's New Terms: Limit all "DAMAGES, LOSSES OR CAUSES OF ACTION 20 HUNDRED UNITED STATES DOLLARS 21 Civil Code 22 commercial 23 from unauthorized commercial 24 ($100.00), [TO] though ONE California higher; 25 (b) 3344 use provides of a for statutory person's personality Cause customers to explicitly use damages or of $750.00 for unauthorized photograph, of valuable even and individual photographic art damages could be much agree that "ANY DAMAGES, LOSSES OR 26 INJURIES THAT ARISE OUT OF INSTAGRAM'S ACTS OR OMISSIONS, 27 CAUSED TO YOU ARE NOT IRREPARABLE OR 28 CLASS ACTION COMPLAINT SUFFICIENT TO Case3:12-cv-06482-NC Document1 Filed12/21/12 TO ENJOIN OR RESTRAIN" Waive all customer (c) 3 4 a to Instagram's conduct; judicial remedies, except small claims, by engrafting no-class action arbitration clause; and the statute of limitations for all claims Artificially limit (d) 5 rights all "RIGHTS explicitly disclaiming ENTITLE YOU TO AN INJUNCTION 2 Page3 of 27 against Instagram to one (1) year. 6 Instagram is taking its customers' Property rights, while insulating itself from all 3. 7 Instagram is attempting prohibit customers from 8 liability for doing 9 stopping changing Instagram's conduct by seeking a court's equitable and injunctive relief. to If customers do not agree with Defendant's scheme, 4. 10 so. canceling, forfeit all ever they can cancel right to retrieve the their or profile Property that 11 with Instagram. However, upon 12 was 13 Instagram declares that "possession is nine-tenths of the law and if you don't like it, you can't 14 stop us." 15 5. previously Instagram, which retains rights thereto entrusted to On behalf of customers a class of Instagram's California and in customers, Plaintiff is preserve valuable and 17 declaratory and equitable relief issued by this Court before such claims 18 adoption 19 effective, this of Instagram's case is New Terms. For this reason, "ripe" Instagram's for 6. 21 below) by adding 22 of the Current Temis, 23 of 24 Plaintiff and the Class' self 25 commercial 26 Civil Code good faith and fair use acting to forever barred are not by yet adjudication. and additional provisions that thereby breaching dealing. Similarly, of "name, are the New Terms New Terms breach its Current Terms of 20 new though even short, legal rights, through injunctive, 16 important property, statutory, In perpetuity. go far beyond use (see paragraph 15, the scope and the Current Terms and the attendant the photographs new subject implied matter covenant "transferrable and sub-licensable" license to and other likeness constitutes voice, signature, photograph, or a nonconsensual likeness" in violation of California 3344. Instagram's New Temis also breach its bailment of Plaintiff and the Class' 27 28 CLASS ACTION COMPLAINT Case3:12-cv-06482-NC Filed12/21/12 Document1 Page4 of 27 for their 1 Property because customers delivered their 2 and their individually designated audiences, not for commercial exploitation-by 3 7. Property Instagrarn's breach of the implied Instagram to covenant contract with implied own use and benefit Defendants. of good faith and fair dealing incident Plaintiff and the Class, violations of 4 to the Current Terms or other 5 California Civil Code 6 constitute unlawful and unfair business practices in violation of California's Unfair 7 Law 8 declaration of her and other California customers' rights to the Property at issue, Plaintiff seeks 9 relief under the Declaratory 10 11 12 8. Judgment Act, et Competition And because Plaintiff is seq.). seeking a 2201. 28 U.S.C. Accordingly, Plaintiff respectfully requests California Class the (a) 17200, PROF. CODE (the "UCL", CAL. BUS. that the Court grant Plaintiff and the following injunctive, equitable and declaratory remedies: Change in the New Terms voiding Defendants' claimed "transferrable and sub- licensable" worldwide license to the Property; 13 14 3344, and improper misappropriation of property and legal rights (b) An injunction and/or declaration that 15 ownership rights 16 the Instagram shall not claim or exercise Property without Plaintiff and the Class' authorization. 17 (c) A change 18 providing 19 licensees 20 (d) 22 (e) in Terms and/or the customer A controls as or change in how Instagram and procedures any transferees sub- that Plaintiff and the Class do not effecting equitable, injunctive or declaratory remedies; change in Terms and/or the allowing Plaintiff and the Class 24 actual (0 to the Terms 23 25 of processes and implementation express commercially exploit Plaintiff and the Class' Property; can A declaration waive 21 over possession A declaration or 26 customers do not 27 Civil Code of their implementation to download or of processes and procedures otherwise obtain exclusive and Property; and change in the Terms directing that Plaintiff and other California waive damages upon Instagram 3344. 28 CLASS ACTION COMPLAINT or its sub-licensees' violation of Case3:12-cv-06482-NC Filed12/21/12 Document1 Page5 of 27 JURISDICTION AND VENUE 1 This Court has 9. 2 jurisdiction the over subject matter of this action pursuant to the ??1332(d), 1446, and 1453(b). Plaintiff further allege 3 Class Action Fairness Act, 28 U.S.C. 4 upon information and belief that the cumulative amount in controversy for Plaintiffs and the 5 class exceed $5 6 to 28 U.S.C. 7 violations of law 8 (a) 9 services to Class members located in this District; and/or million, exclusive of interest and ?1391(a) and (c) because complained many of the acts and transactions giving pursuant rise to the of herein occurred in this District and because Defendants: conduct business themselves licensed costs. Venue is proper in this District registered or through agent(s) in this district, by providing in this District; and/or 10 (b) are 11 (c) otherwise have sufficient contacts with this District to 12 brought into court in this District. or justify them being fairly THE PARTIES 13 Plaintiff Lucy Funes is, and at all times material, 10. 14 At all times relevant 15 County, California. 16 Instagram containing 17 maintains and 11. 18 uses at least one was a hereto, Plaintiff maintain photograph resident of San an Diego active account with Plaintiff, and/or Plaintiff's likeness. Plaintiff of the property with Instagram for personal, business and promotional purposes. Defendant Instagram, Inc. is, and at all times relevant to this headquartered in San Francisco, Complaint was, a California, where 19 corporate citizen of the State of California, 20 Instagram Inc.'s officers direct, control, and coordinate the corporation's activities. 12. 21 Defendant Instagram, LLC is, and at all times relevant to this headquartered Complaint was, a in San Francisco, California, where 22 corporate citizen of the State of California, 23 Instagram LLC's officers direct, control, and coordinate the corporation's activities. 13. 24 At all times mentioned in the 25 defendant 26 doing 27 acting within the the was an causes of action alleged herein, each and every agent, representative and/or employee of each and every other defendant. In things alleged course in the causes of action stated herein, each and every defendant and scope of this agency, authority, representation 28 CLASS ACTION COMPLAINT or was employment and Case3:12-cv-06482-NC acting with the consent, Filed12/21/12 Document1 permission and authorization Page6 of 27 of each of the remaining defendants. 1 was 2 All actions of each defendant 3 approved by every other defendant, or their respective officers or managing agents. as alleged in the causes of action stated herein were ratified and 4 DEFENDANT'S WRONGFUL AND UNLAWFUL ACTS AND PRACTICES 5 14. Defendants are customers to 7 their 8 and 9 online social networks such upload or Android powered mobile devices, the results to their or customers to take cameras, as apply that allows their photographs artistic filters to the can also be shared images, on 13 Current Terms as 16 17 provide in pertinent part: We reserve the right to alter these Terms of Use at any time. If the alterations constitute a material change to the Terms of Use, we will notify you via internet mail according to the preference expressed on your account. What constitutes a "material change" will be determined at our sole discretion, in good faith and using common sense and reasonable judgement. 18 Proprietary Rights 19 in Content on lnstagram 201 appits.;ativitb, 21 1..n. aiiy UUJ& 1110.1%.411C4la UIii.3V.4Y. 22 23 24 or not be 25 distributed outside the Instagram Services. See, Ex. "A" (Bold in original, underline added). 26 27 28 vvzsi.una, y Las., y toy., through the Instagram Services. By displaying or publishing ("posting") any Content on or through the Instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels, except Content not shared publicly ("private") will on 1 current Exhibit "A" (the "Current Terms"). The General Conditions 2. other 100 million customers. version of Instagram's terms of use is attached hereto 15 from Fackbook and Twitter. Instagram's service has become 12 14 networking website Instagram's service is governed by Defendants' "Terms of Use". The 15. 11 social Instagram profile. These photographs increasingly popular, boasting over 10 a take, edit and share images. Instagram allows 6 Apple operators of CLASS ACTION COMPLAINT Case3:12-cv.Z.6482-NC 16. On December Documenti Page7 of 27 20, 2012 Instagram announced that it would be changing its 2 Current Terms effective January 19, 2013. 3 Exhibit "B, and in provide Filed12/21/12 A copy of the New Terms are attached hereto pertinent part: 4 General Conditions 5 If we terminate your access to the Service or you use the form detailed above deactivate your account, your photos, comments, likes, friendships, and all other data will no longer be accessible through your account (e.g., users will not be able to navigate to your username and view your photos), but those materials and data may persist and appear within the Service (e.g., if your Content has been reshared by others) to 6 7 8 Rights 9 10 Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to Instagram a non-exclusive, fully paid 11 Content that you post 12 Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. If you are under the age of eighteen (18), or under any other applicable age of majority, you represent that at least one of your parents or legal guardians has also agreed to this provision (and the use of your name, likeness, usemame, and/or photos (along with any associated metadata)) on your behalf. 13 14 15 16 on or through the Service, 17 Limitation of Liability; Waiver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as Case3:12-cv,,:06482-NC Document1 Filed12/21/12 Page8 of 27 IiY ACUESSINU I HE SERVICE, YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS 1 TIMP 2 INKNOWNI rilz TNICI TCPPCTPTI A Kin n.J AronDnAxior UFrrLT SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS 4 FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." 5 6 Arbitration 8 Except if you opt-out or for disputes relating to: (1) your or Instagram's intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights and patents); (2) violations of the API Terms; or (3) violations of provisions 13 or 15 of the Basic Terms, above ("Excluded Disputes"), you agree that all disputes between you and Instagram (whether or not such dispute involves a third party) with regard to your relationship with Instagram, including without limitation disputes related to these Terms of Use, your use of the Service, and/or rights of privacy and/or publicity, will be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you and Instagram hereby expressly waive trial by jury. As an alternative, you may bring your claim in your local "small claims" court, if permitted by that small claims court's rules. You may bring claims only on your own behalf. Neither you nor Instagram will participate in a class action or 9 10 11 12 13 14 15 vines-wide grhitratinn for any claims covered by this aareement. You also azree participate in claims brought in a private attorney general or representative capacity, or consolidated claims-involving another person's account, if Instagram is a party to the proceeding. This dispute resolution provision will be governed by not to 16 the Federal Arbitration Act. In the event the American Arbitration Association is unwilling or unable to set a hearing date within one hundred and sixty (160) days of filing the case, then either Instagram or you can elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may be entered in any court having competent jurisdiction. Any provision of applicable law notwithstanding, thp arhitrator will not have authority to award damages. remedies or awards that conflict with these Terms of Use. 17 18 19 20 21 23 You may opt out of this agreement to arbitrate. If you do so, neither you nor Instagram can require the other to participate in an arbitration proceeding. To opt out, you must notify Instagram in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: 24 lnstagram, 22 LLC ATTN: Arbitration Opt-out 1601 Willow Rd. Menlo Park, CA 94025 25 You must include your name and residence address, the email address you use for want to opt out of this your lnstagram account, and a clear statement that you 26 arbitration agreement. 27 28 IICLASS I ACTION COMPLAINT Case3:12-cv-06482-NC Filed12/21/12 Documenti Page9 of 27 If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language--in--this Arbitration section will be- null and void:--This arbitration agreement will survive the termination of your relationship with Instagram. 1 2 3 Time Limitation 4 You agree that any claim you may have arising out of or related to your relationship with lnstagram must be filed within one year after such claim arose; otherwise, your claim is permanently barred. 5 6 on Claims See, Ex. "B" (Bold in orig'inal, underline added). Defendants 17. 7 8 Instagram blog 9 Terms on originally posted earlier version of the New Terms December 18, 2012. Customer and media backlash overwhelmingly negative. were an That the Instagram same New against Instagram's day, Defendants posted Blog. Instagram stated that a the on purported the New Terms 10 clarification of the New Terms 11 "interpreted by many that we were going to sell your photos to others without any compensation. 12 This is not true and it is 13 intention to sell your 14 is clear." photos. Instagram's 18. 15 our 16 "also raised question [sic] 17 have for 18 raised the plans mistake that this We are working language on is confusing. were To be clear: it is not updated language in the make terms to sure our this December 18, 2012 press release also stated that the New Terms about whether your photos can be part of an advertisement. We do not like this and because of that we're going to remove the language that question." Finally, Defendants' December 18, 2012 press release stated 19. 19 anything on their content and Instagram does not claim any ownership rights 20 own 21 about this has 22 to itself of 23 significant rights to the Property while depriving Plaintiff and the 24 over that "Instagram users photos. Nothing their Property. 25 20. changed." (Emphasis added). an its website. The 27 New Terms technically true, lnstagram's unilateral gant irrevocable, transferrable and sub-licensable worldwide license appropriates On December 20, 2012, 26 While your purported were nothing Class of value and control Instagram posted the final version of the over New Terms on concessions by Instagram in its press release and final version of the more than a public relations campaign 28 CLASS ACTION COMPLAINT to address public discontent. the concessions in 1 Specifically, 2 Filed12/21/12 Document1 Case3:12-cvz96482-NC press release Pagel0 of binding, 27 and the revised New Terms failed to- address: Instagram's (a) Defendants' irrevocable grant of 3 license to Plaintiff and the Class' 4 (b) Defendants' 5 a "transferrable and sub-licensable" worldwide Property; waiver of important legal, equitable, damages, injunctive and equitable remedies, 6 Defendants' future (c) 7 ability 8 Plaintiff and the Class' 9 damages Defendants' need 21. 10 injunctive and 11 Property of Plaintiff and 12 of damages, 13 Instagram 14 otherwise as can well as to Property alia, or otherwise encumber a equitable two step process incorporate after to January 16, 2013. fully appropriate the the class-action waiver, waiver relief. After the New Terms become effective, add additional terms and conditions that allow Defendants to misappropriate and commercially exploit the Property with no recourse available to Plaintiff and the Class. CLASS ACTION ALLEGATIONS 22. 16 Plaintiff brings this action Procedure 23(a), (b)(2) and (b)(3) for the 17 as a class action pursuant to Federal Rules of Civil following Class of persons: All natural persons who, while residents of the State of California, maintain 18 active Instagram account subject Instagram's Terms in effect prior to at least one photograph of the owner of the account. 2013, containing to 19 20 Excluded from the Class 21 trust, 22 justice or judicial 23 judicial I corporation, or other all governmental entities, entity related over to or an January 19, Defendants herein and any person, firm, affiliated with Defendants, as well as any judge, this matter and members of their immediate families and staff. 23. The members of the Class are so numerous that joinder of all Class members is While the exact number of Class members is unknown to Plaintiff at this time and impracticable. 26 will be ascertained 27 are 1 are officer presiding 25 28 inter after Defendants' class-action waiver, waiver of the Class. First, New Terms 15 24 rights to, and judicial process; and equitable relief comes into effect and and and substantive sell, appropriate, transfer only implement injunctive were not through appropriate discovery, Plaintiff is informed and tens of thousands of members in the proposed Class. believes that there As Plaintiff and members of the Class CLASS ACTION COMPLAINT Case3:12-cv-06482-NC Filed12/21/12 Document1 Page 11 of the least, their name, and email address to Instagram upon 1 provide, 2 Instagram account, such that members of the Class 3 27 Defendants. 4 at 24. Plaintiff's claims are typical can for an be identified from records maintained by of the claims of the other members of the Class. All 5 members of the Class will be 6 of herein, in violation of California law. Plaintiffs have 7 25. Plaintiff will registering similarly affected by Defendants' wrongful conduct, and fairly 8 retained counsel competent and 9 no adequately protect in as complained interests adverse to the Class. the Class members' interests and has class action lawsuits and litigation. 26. 10 experienced consumer Defendants have acted, with respect to the Class, in Class member. Common a manner of law and fact exist complex generally applicable all Class members and 11 to each 12 predominate 13 defined of interest in the questions of law and fact involved in this action, which 14 affect all Class members. Among the questions of law and fact 15 alia: 16 over any community (a) questions questions wholly affecting Whether Defendants' unilateral 17 Defendants' current Terms 18 as to individual Class members. There is change thus common to of contract violating the a well- the Class are, inter terms goes implied beyond covenant of what good faith and fair dealing; 19 (b) Whether Defendants' and the Class' self 21 commercial 22 of California Civil Code 23 (c) 25 26 (d) photographs of "name, voice, and other likeness constitutes signature, photograph, nonconsensual likeness" in violation 3344; a bailment, and whether Defendants breached that bailment; Whether Defendants' new Terms constitute unlawful and/or unfair business practices in violation of the UCL, including: 27 28 or a Whether Plaintiff and the Class transfer of their Property to Defendants constituted 24 use "transferrable and sub-licensable" license to Plaintiff new 20 permit, 10 CLASS ACTION COMPLAINT Case3:12-cv-06482-NC (i) 1 Whether Defendants' because: 3 consumers or 4 avoided (ii) Pagel2 of 27 Terms constitute "unfair" business new practices consumer injury outweighs any countervailing benefits 2 5 Filed12/21/12 Document1 competition, and because such to injury could not be reasonably by consumers; %ether Defendants' new Terms constitute "unfair" business practices by violating established public policy; 6 (iii) 7 Whether Defendants' Terms constitute "unfair" business new practices immoral, unethical, oppressive, unscrupulous 8 because 9 substantially injurious to consumers. (e) 10 11 Whether Defendants access to (f) 12 14 (g) or are damages, abetters, enablers, to the new Terms or 17 other defendants as or or were (i) 20 of limitation(s), U.S.C. otherwise each others' agent, alter duly authorized representatives otherwise aided and abetted or with respect enabled the misconduct of alleged herein; The nature and extent of damages, equitable remedies, and injunctive which Plaintiff and the other members of the Class 19 statutes declaratory relief under 28 entitled to Whether Defendants acted in concert 16 are relief to entitled; and %ether Plaintiff and the members of the Class should be awarded attorneys' fees and the costs of suit herein. 21 27. 22 A class action is superior of this controversy since to all other available methods for the fair and efficient joinder of all 23 adjudication 24 the 25 and burden of individual 26 individually redress the wrongs done to them. 27 as a 28 limit otherwise; ego, aiders and (h) unilaterally can or judicial process and bar equitable injunctive relief; 15 18 are Whether Plaintiff and the Class 2201, 13 they members is impracticable. Furthermore, as damages injury suffered by individual Class members may be relatively small, the expense litigation make it virtually impossible There will be no class action. 11 CLASS ACTION COMPLAINT for Class members difficulty in managing this to action Case3:12-cv-06482-NC 1 Defendants have acted 28. the matters 2 respect 3 with respect to the Class 4 5 to 29. complained Plaintiff as a Filed12/21/12 Document1 on Pagel3 of grounds generally applicable of herein, to 27 the entire Class with the relief sought herein thereby making appropriate whole. reserves the right revise the above class definition based to on information learned during discovery. 6 FIRST COUNT 7 of Actual and Implied Contract Violation of the Covenant of Good Faith and Fair Dealing) (Breach 8 9 30. fully set forth 10 11 31. which 12 Plaintiff at Plaintiff and each Class member an implied Instagram's service, 14 attempting to add provisions 15 in accordance with the 17 33. covenant 18 19 of 20 rights as provided by Defendants' that were not subject matter, and Defendants' unreasonable As good faith and 21 covenant of good faith in their 35. to and fair Instagram's as though current or a direct and fair 22 public 23 irreparable harm, 24 current Terms use change of and Defendants' conduct, by Terms, and not current Terms accordingly Instagram's current violates the implied Terms. proximate result of Defendants' breaches of the implied dealing, Plaintiff and of the scope of the current Terms. covenant each member of the Class sustain loss of valuable Property in an amount to be proved An Terms, for dealing. reasonably anticipated by the of good faith and fair dealing inherent in 34. subject are Instagram interferes with and frustrates Plaintiff and the Class' 13 16 forgoing paragraph, length herein. Instagram has 32. each and every incorporates by reference Implied at the trial of this matter. injunction prohibiting Defendants from implementing the new Terms is in the Defendants. interest. Absent an and the injunction, Plaintiff continuing 25 (Violation 26 27 28 36. Plaintiff incorporates threat of and each member of the Class will suffer wrongful misappropriation SECOND COUNT of California Civil Code by reference each and 12 CLASS ACTION COMPLAINT by 3344) every fully set forth at length herein. of their Property forgoing paragraph, as though Case3:12-cv-Q6482-NC California's 37. 1 Document1 Filed12/21/12 Pagel4 of 27 Right of Publicity Statute, California Civil Code 3344 et seg., 2 protects persons from the unauthorized appropriation of the person's identity by another for 3 commercial 38. 4 5 gain. Instagram's Class' names, new photographs, or Terms allows Defendants to likenesses to directly advertise 39. Instagram does 7 40. Plaintiff and the Class receive 8 9 advertise for Instagram or using Plaintiff sell a compensation no and the Class' names, Plaintiff and the Class will be 11 42. Use of Plaintiff and the Class' names, connected to 13 broadcast account, Instagram's commercial or a or photographs, so. other consideration from and/or likenesses to directly and likenesses photographs, use, as opposed actions. to news, are necessarily public affairs, a sports political campaign. 43. An actions Instagram's 44. 14 15 or product or service. irreparably harmed by Instagram's 41. directly a Plaintiff and the product or service. 10 12 sell use have Plaintiff or the Class' consent to do 6 not or knowingly are a substantial factor in causing Plaintiff and the Class harm. 16 injunction prohibiting Defendants Absent 17 public interest. 18 irreparable harm, 19 injunction, from implementing the new Terms is in the Plaintiff and each member of the Class will suffer Defendants. an and the continuing threat of wrongful misappropriation of their Property by THIRD COUNT (Breach of Bailment) 20 21 45. Plaintiff incorporates by reference each and every forgoing paragraph, as though 22 fully set forth at length herein. 23 46. Plaintiff and the Class each delivered 47. Under to Defendants their Property. 24 Instagram's current Terms 25 Instagram agreed to disclaim any ownership rights those in effect prior to January 16, 2012 in Plaintiff and the Class' property, and to 26 hold and maintain the Property for the exclusive benefit of Plaintiff and the Class. 27 28 13 CLASS ACTION COMPLAINT Case3:12-cv-06482-NC 1 Document1 While Defendants 48. are in Filed12/21/12 possession Pagel5 of of Plaintiff and the Class' 2 in dominion and control of the 3 rights to their Property, 4 Instagram 5 27 Property, they were Plaintiff and the Class' Property from Instagram, which maintains rights thereto in perpetuity. The Terms new which Plaintiff and the Class account. Even then, Plaintiff and the Class of Plaintiff and the Class' misappropriate not are are Defendants' change in Terins constitutes 49. 6 Property. a able to avoid unless not able to demand breach of ordinary they delete redelivery of their care and diligence Property, and in fact misappropriates valuable 7 in the 8 their and important property rights of Plaintiff and the Class. handling 50. 9 As a direct and result of Defendants' breach of bailment of the proximate 10 Property, Plaintiff and the Class suffer injury 11 proved rights to their in Property an amount to be at trial. An 51. 12 and lost injunction prohibiting Defendants from implementing the interest. Absent 13 the 14 irreparable harm, 15 injunction, Plaintiff current Terms is in and each member of the Class will suffer Defendants. public and the an continuing threat of wrongful misappropriation of their Property by 16 (Violation 17 FOURTH COUNT of CAL. Bus. & PROF. CODE 17200, et seq.) Plaintiff incorporates by reference each and every forgoing 52. paragraph, as though 18 fully set forth at length herein. 19 53. Defendants acts, conduct and practices, as described herein, constitute unlawful 20 and unfair business acts and practices within the meaning of California Business and Professions 21 Code sections 17200, 22 54. 23 et seq. Defendants' unilateral change of the Terms constitutes "unfair" business because: injury to Plaintiff and the Class outweighs any countervailing benefits to 24 competition, 25 55. and because such injury could not be Defendants' unilateral change of the Terms constitutes "unlawful" and "unfair" practices by violating established public policy as embodied in California Civil Code 27 3344. 28 consumers or reasonably avoided by Plaintiff and the Class. 26 business practices 14 CLASS ACTION COMPLAINT Document1 Case3:12-cv-Q?482-NC 56. 1 2 because 3 Defendants' unilateral change Filed12/21/12 Pagel6 of 27 of the Terms constitutes "unfair" business practices consumers. 4 they are immoral, unethical, oppressive, unscrupulous Defendants acted in concert and/or 57. 5 aiders and abettors, enablers, 6 Memberships 7 were or substantially injurious to otherwise each others' agent, alter ego, alleged herein. 8 9 58. practices as or or authorized duly otherwise aided and abetted As a direct and alleged herein, proximate Plaintiff is or representatives with respect to the Adaptive enabled the misconduct of other defendants as result of Defendants' unlawful and unfair business wrongfully deprived of intellectual and personal property. 10 Plaintiff suffer 11 Defendants irrevocable "transferrable and sub-licensable" worldwide license to Plaintiff and the 12 Class' 13 statutory damages for Defendants violations of Civil Code as a result of Defendants' change in the current Terms because Property deprives Plaintiffs of significant property rights, and the ability 59. 14 injury-in-fact An injunction prohibiting interest. Absent 15 public 16 irreparable harm, 17 Defendants from to obtain 3344. implementing the new Terms is in the Plaintiff and each member of the Class will suffer injunction, Defendants. an and the continuing threat of wrongful misappropriation 18 Property by FIFTH COUNT 19 of their (Declaratory Relief Pursuant to the Declaratory Judgment Act 28 U.S.C. 2201) 20 21 22 23 24 25 60. fully set forth 61. Plaintiff incorporates at each and every Defendants seek to irrevocably change new Plaintiff and the Class the legal rights Terms that become effective are as though on between Plaintiff and the January 13, entitled to have this Court establish rights and legal relations under Instagram's terms of service. 26 27 28 forgoing paragraph, length herein. Class in the form of Instagram's 62. by reference 15 CLASS ACTION COMPLAINT 2012. by declaration their Filed12/21/12 Document1 Case3:12-cv-W482-NC Pagel7 of 27 DEMAND FOR TRIAL BY JURY 2 63. Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, and the Seventh 3 Amendment to the United States Constitution, Plaintiff hereby demands 4 the claims asserted in this trial a by jury of all of Complaint so triable. PRAYER FOR RELIEF 5 6 WHEREFORE, Plaintiff and the Class pray for relief and judgment as follows: 7 A. For an order declaring class that this action is representative 8 certifying 9 properly maintained as a class action and in accordance with Rule 23 of the Federal Rules of Civil Procedure; 10 B. 13 14 15 16 17 an order enjoining Defendants from enacting and/or enforcing the Terms as alleged herein; 11 12 For a C. For injunctive, declaratory and other equitable relief as follows: (i) Change in the New Terms voiding Defendants' claimed "transferrable and sub-licensable" worldwide license to the Property; (ii) An injunction and/or declaration that Instagram shall not claim ownership rights over the Property without Plaintiff and the Class' (iii) A change in Terms and/or the how or exercise express authorization. implementation of processes and procedures Instagram and any transferees sub-licensees 18 providing customer controls 19 commercially exploit Plaintiff and the Class' Property; 20 21 22 (iv) do not waive (v) A declaration or change in the Terms A Plaintiff and the Class to download 24 possession of their Property; A declaration or otherwise obtain exclusive and actual and or change in the Terms directing that Plaintiff and other 26 California customers do not waive damages upon Instagram 27 violation of Civil Code 28 the Class change in Terms and/or the implementation of processes and procedures allowing (vi) effecting that Plaintiff and can equitable, injunctive or declaratory remedies; 23 25 as to 3344. 16 CLASS ACTION COMPLAINT or its sub-licensees' Case3:12-cv-06482-NC 1 E. For an order fees D. 2 3 Document1 as permitted by law; Filed12/21/12 awarding attorneys' fees and costs Pagel8 of of suit, including experts' and Such other and further relief as this Court may deem just and proper. 4 5 6 Dated: December 21, 2012 Respectfully submitted, FINKEL. TE1N & LLP 7 8 'AA wrr, --assaction w.co 9 10 11 12 13 14 Jeffrey R. Krinsk, Esq. jrk@classactionlaw.com Mark L. Knutson, Esq. mlk@classactionlaw.com 501 West Broadway, Suite San Diego, CA 92101 Tel: (619) 238-1333 Fax: (619) 238-5425 1250 Attorneys for Plaintiff and the Class 15 16 17 18 19 20 21 22 23 24 25 26 27 28 27 17 CLASS ACTION COMPLAINT witness Documentl Fi|ed12/21/12 Page19 of 27 EXHIBIT A Document1 Case3:12-cv-0?482-NC Filed12/21/12 Page20 of 27 Log In ABOUT Cutnpany Terms of Use W. updating are Jobs our Tams of Use: Our updated Terms of Use will be effective By using the instagramanstagram.com website ("Terms of use): FAO. January 16, instagram service you are agreeing to be 2013 bound by the following terms and conditions LEGAL and on Basic Terms Terms 1. You must be 13 years or older to use this site. 2. You may rat Privacy API Terms 3. You are post nude, penalty nude, or sexually suggestive photos. responsible for any activity that occurs 4. You are responsible for keeping your password under you: screen name. secure. 5. You must not abuse, harass, threaten, impersonate Libraries or Intimidate other Instagram users. 6. You may nut use the Instagram service for any Regal or unauthorized purpose. International with ali local laws regarding onine conduct and acceptable content. users agree to comply 7. You are solely responsible for your conduct and any data, text, Information, screen names, gaphics, photos, profiles, audio and video clips, links ("Content") that you submit, post, and display on the instagram service. 5. You must not modify, adapt or hack Instagram with or modify another websIte so as to falsely imply that it is associated Instagram 9. You rivet not access InstagranYs rxivate API by any other means 10. You must not crawl, scrape, or otherwise cache any content from other than the instagnam application itself. instagram including but not limited to user profiles and photos. 11. You must not create or submit unwanted email or comments to any 12. You must not use web URLs in your name without Instagram members (*Spam"). prior written consent from Instep:am, inc. 13. You must not transmit any worms or viruses or any code of a destructive nature. 14. You must not, In the use of instagram, violate any laws in your jurisdiction (including but not limited to copyright laws). 15. Violation of any of these agreements will result In the termination of your Instagram account. While Instagram prohibits SuCh conduct and content on Its site, you understand and agree that Instagram cannot be responsible for the Content posted on its web site and you nonetheless may be exposed to such materials and that you use the Instagram service at your own risk. General Conditions 1. We reserve the right to modify or terminate the instagram service for any reason, without notice at any time. right to alter these Terms of Use at any time. If the alterations constitute a material change to the Terms of Use, we will notify you via internet mail according to the preference expressed on your accoul. What constitutes a 'material change will be determined at our soie discretion, in good faith and using common sense and reasonable Judgement. 2. We reserve the 3. We reserve the right to refuse service to anyone for any reason at any time. 4. We reserve the right to force forfeiture of any username that becomes Inactive, violates trademark, misiead other users. or may 5. We may, but have no obligation to, remove Content and accounts containing Content that we deternine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, obscene or otherwise objectionabie or violates any party's intellectual property or these Terms of Use. 6. We reserve the trademark right to reclaim usernarres on behalf of businesses Proprietary Rights 1. or individuals that hold legal claim or on those usernarres. in Content on Instagram ownership rights In the text, files, images, photos, video, sounds, musical works, Instagram works of authorship, applications, or any other materials (colectively, "Contenr) that you post on or through the Instagram Services. By displaying or pubishing ("posting') any Content on or through the instagram Services, you hereby grant to Instagram a non-exclusive, fully paid and royalty-free, workiwide, limited license to use, modify. does NOT claim ANY delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or ail of the Site in any media formats through ars/ media channels, except Content not shared publicly (private) will not be distributed outside the Instagram Services. Instagram Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and promotions on the Instagram Services or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you. 3. You represent and warrant that: (I) you own the Content posted by you on or through the instagram Services or otherwise have the right to grant the license set forth in this section, (ii) the posting and use of your Content on or through the Instagram Services does not violate the privacy rights, publicity rights, copyrights, contract rights, intellectual properly rights or any other rights of any person, and (Ill) the posting of your Content on the Site does not result in a breach of contract between you and a third party. You agree to pay for all royalties, fees, and any other monies owing any person by reason of Content you post on or through the Instagram Services. 2. Some of the Case3:12-cv-06482-NC A Document1 Filed12/21/12 Page21 of Cinstagrihritenr). 27 The Instagram Services contain Content of Instagrom Instagram Content is protected by copyright, trademark, patent, trade secret and other laws, and irstagram owns and retains all rights In the lnstagram Content and the lnstagram Services. Instagram hereby grants you a limited, revocable, nonsublicensable license to reproduce and display the Instagram Content (excluding any software your personal use in connection with viewing the Site and using the Instagram Services. code) solely for 5. The Instagram Services contain Content of Users and other Instagram licensors. Except as provided within this Agreement, you rimy not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or set any Content appearing on or through the Instagram Seivices. 6. Instagram performs technical functions necessary to offer the instagram Services, inducing bul not --ironeeeding-androurefermattitio-Ceatent-te-alew-its-use-throughoul-the-laetagramServices. 7. limited to Although the She and other instagram Services are normally available, there will be occasions when the Site or other lnstagram Services will be Interrupted for scheduled maintenance or upgrades, for emergency repairs, or due to failure of teleconiumications links and equipment that are beyond the control of instagram. Also, although Irstagram will normally only delete Content that violates this Agreement, instagram reserves the right to deists any Content for any reason, without prior notice. Deleted content may be stored by Instagram in order to comply with certain legal obligations and Is not retrievable without a vaid court order. Consequently, instagram encourages you to maintain your own backup of your Content. In other words, instagram Is not a backup service. Instagram wit not be table to you for any rrodification, suspension, or discontinuation of the instagram Services, or the loss of any Content. YOUR ACCOUNT ABOUT US SUPPORT BLOC API JOBS PRIVACY TERMS 52012 !BST/MAN Documentl Fi|ed12/21/12 Page22 of 27 EXHIBIT Case3:12-cv-06482-NC Document1 Filed12/21/12 Page23 of 27 Log In ABOUT Company Terms of Use These Terms of Usti aro affective on January 19, 2013. To access our previous Terms of Use, please click here. Jobs FAO LEGAL By accessing or using the Instagram website, the Instagram service, or any applications (including mobile applications) made available by Instagram (together, the "Service), however accessed, you agree to be bout by these terms of use ("Terms of Use"). The Service is owned or controlled by Instagram, LLC ("Instagraml. These Terms of Use affect your legal rights and obligations. If you do not agroe to be bound by all of these Terms of Use, do not access or Terms Privacy API Terms Libraries use the Service. There may be times when we offer a special feature that has its own terms and conditions that apply in addition to these Burns of Use. In those cases, the terms specific to the special feature control to the extent there is a conflict with these Terms of Use. ARBITRATION NOTICE: EXCEPT F YOU OPT-OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND INSTAGRAM WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBIMATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION. Basic Terms 1. You must be at least 13 years old to use the Service. 2. You may not post violent, nude, partially nude, discriminatory, unlawful, Infringing, hateful, pornographic suggestive photos or other content via the Service, sexualy or 3. You are responsible for any activity that occurs through your account and you agree you wit not sell, transfer, assign your account, folowers, username, or any account rights. With the exception of people or businesses that are expressly authorized to create accounts on behalf of their employers or dents, Instagram prohibits the creation of and you agree that you will not create an account for anyone other than yourself. You also represent that all information you provide or provided to Instagram upon registration and et all other times will be true, accurate, current and complete and you agree to update your Information as necessary to maintain its license or truth and accuracy. 4. You agree that you will not solicit, collect or 5. You are use responsible for keeping your password the login credentials of other Instagram users. secret and secure. 8. You must not defame, stalk, bully, abuse, harass, threaten, impersonate or intimidate people or entities and you must not post private or confidential inforrnation via the Service, Including, without limitation, your or any other person's credit card information, social security or alternate national identity numbers, non-pubic phone numbers or non-pkblic email addresses. Illegal or unauthorized purpose. You agree to comply with ell laws, rukss and regulations (for example, federal, state, local and provincial) applicable to your use of the Service and your Content (defined below), including but not Wilted to, copyright laws. 7. You may not use the Service for any are solely responsible for your conduct and any data, text, files, information, usernames. Images, graphics, photos, profiles, audio and video cips, sounds, musical works, works of authorship, applications, lir*s and other content or materials (collectively, 'Content') that you submit, post or display on or via the Service. 8. You 9. You must not change, modify, adapt or alter the Service or inply that it Is associated with the Service or Instagram. 10. You must not change, modify or alter another webslte so as to falsely instagram's private API by means other than those permitted by instagram. Use of sublect to a separate set of terms available here: http:llinstagram.convabouvlegaitterrreopii access Instagram's API ("API Terme"). is 11. You must not create or submit unwanted email, comments, likes or other forms of commercial or harassing communications 12. You must not (alkia "seem") use domain to any names or Instagram users. web URLs In your username without prior written consent from Instagram. or disrupt the Service or servers or networks connected to the Service, including by transmitting any worms, viruses, spyware, malware or any other code of a destructive or disruptive nature. You may rot Inject content or code or otherwise alter or interfere with the way any Instagram page is rendered or displayed in a user's browser or device. 13. You must not Interfere comply with Instagram's Community Guidelines, available here: hap 'Melo instagtem cordousIorreroortai IartIcles12623817-corrrnmity-guidelines. 14. You must 15. You must not create accounts with the Service through unauthorized means, an automated device, script, tot, spider, crawler or scraper. incUding tut not limited to, by using 16. You must not attempt to restrict another user from using or enjoying the Service and you must not encourage or facilitate violations of these Terme of Use or any other Instagram terms. 17. Violation of these Terms of Use may, In Instagram's sole ascretion, result in termination of your Instagram account. You understand and agree that Instagram cannot and will not be responsible for the Content posted on the Service and you use the Service at your own risk. If you violate the letter or spirit of these Terms of Use, or otherwise create risk or possible legal exposure for Instagram, we can stop providing all or part of the Service to you. General Conditions 1. We reserve the right to nodify or terminate the Service or your access to the Service for any reason, without notice. at any time, and without liability to you. You can deactivate your Instagram account by logging into the Case3:12-cv-06482-NC Document1 of 27 Filed12/2u*Page24 eta:writs/remove/request/. If we terminate your access to the Service or you use the form detailed above to deactivate your account, your photos, comments, likes, friendships, and al other data WIN no longer be accessible through your account (e.g., users will not be able to navigate to your usemame and view your photos), but those materials and data may persist and appear within the Service (e.g., if your Content has been reshared by others). Service and completing the form available here: 2. Upon termination, all licenses and other httplibiltne rights granted to you in these Terms of Use will immediately cease. right, in our sole discretion, to change these Terms of Use ("Updated Tenni") from time to time. Unless we make a charge for legal or administrative reasons, we will provide reasonable advance notice before the Updated Terms become effective. You agree that we may notify you of the Updated Terms by posting them on the ServIci, and that iOur use of the Service after the effective date of the Updated Teims (or engaging in such other conduct as we may reasonably specify) constitutes your agreement to the Updated Terms. Therefore, you should review these Terms of Use and any Updated Terms before using the Service. The Updated Terms will be effective as of the time of posting, or such later date as may be specified In the Updated Terms, and will apply to your use of the Service from that point forward. These Terms of Use will govern any disputes arisina before the effective date of the Updated Terms. 3. We reserve the 4. We reserve the right to refuse access to the Service to anyone for any reason at any time. 5. We reserve the right to force forfeiture of any usemame for any reason. 8. We may, but have no obligation to, remove, edit, block, and/or monitor Content that we determine In our sole discretion violates these Terms of Use. or accounts containing Content are solo* responsible for your interaction with other users of the Service, whether online or offine. You agree that Instagrarn Is not responsible or liable for the conduct of any user. Instagram reserves the right, but has no obligation, to monitor or become involved In disputes between you end other users. Exercise common sense and 7. You your best judgment when other Informetion. interacting with others, including when you submit or post Content or any personal or 8. There may be links from the Service, or from communications you receive from the Service, to third-party web sites or features. There may also be links to thIrd-party web sites or features in images or comments within the Service. The Service also includes third-party content that we do not control, maintain or endorse. Functionality the Service may also permit interactions between the Service and a third-party web site or feature, including applications that connect the Service or your profile on the Service with a third-pany web site or feature. For on example, the Service may include a feature that enables you to share Content from the Service or your Content a third party, which may be publicly posted on that third parly's service or application. Using this functionalty typically requires you to lopin to your account on the third-party service and you do so at your own risk, Instagram does not control any of these third-party web services or any of their content. You expressly acknowledge and with agree that instagram is in no way responsible or liable for any such third-pany services or features. YOUR CORRESPONDENCE AND BUSINESS DEALINGS WITH THIRD PARTIES FOUND THROUGH THE SERVICE ARE SOLELY BETWEEN YOU AND THE THIRD PARTY. You may choose, at your sole and absolute discretion and risk, to use applications that connect the Service or your profile on the Service with a third-party service (each, an "Application") and such Application may interact with, connect to or gather and/or pull information from and to your Service profile. By using such APplications, you acknowledge and agree to the following: (i) if you use an Application to share information, you are consenting to information about your profile on the Service being shared; (ii) your use of an Application may cause personally identifying information to be publicly disclosed and/or associated with you, even if instagram has not itself provided such information; and (Hi) your US8 of an Application is at your own option and risk, and you will hold the I nstagrarn Parties (defined below) harmless for activity related to the Application. 9. You agree that you are responsible for all data charges you incur through use of the Service. prohibit crawling, scraping, caching or otherwise accessing any content on the Service via automated means. including but not limited to, user profiles and photos (except as may be the result of standard search engine protocols or technologies used by a search engine with Instagram's express consent). 10. We Rights 1. Instagram does not claim ownership of any Content that you post on or through the Service. Instead, you hereby grant to instagram a non-excluslve, fuly paid and royalty-free, transferable, sub-licensable, worldwide SC8838 to use the Content trot you post on or through the Service, sublect to the Service's Privacy Policy, available here http://instagram.corrilegal/privacW, Including but not limited to sections 3 ("Sharing of Your information"), 4 ("How We Store Your Information"), and 5 ("Your Choices About Your Information. You as described in the Privacy Policy. can choose who can view your Content and activities, incOding your photos, 2. Some of the Service is supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Instagram may place such advertising and pronotions on the Service or on, about, or in conjunction with your Content. The manner, mode and extent of such advertising and promotions change without specific notice to you. 3. You acknowledge that we may not always identify paid services, sponsored content, cormiunIcations as such. or are subject to commercial represent and warrant that: (i) you own the Content posted by you on or through the Service or otherwise right to grant the rights and licenses set forth in these Terms of Use; (II) the posting and use of your Content on or through the Service does not violate, misappropriate or infringe on the rights of any third party, including, without lirnitetion, privacy rights, pubilcity rights, copyrights, trademark and/or other intellectual proPertY rights; (lip you agree to pay for all royalties, fees, and any other monies owed by reason of Content you post on or through the Service; and (Iv) you have the legal right and capacity to enter into these Terms of Use in your 4. You have the jurisdiction. by Instagram ("Instagram Content"). Instagram Content is protected by copyright, trademark, patent, trade secret and other laws, and, as between you and instagram, instagram owns and retains ail rights in the instagrem Content and the Service. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the trotagram Content and you will not reproduce, modify, adapt, prepare derivative works based 5. The Service contains content owned or licensed Case3:12-cv-06482-NC on, Document1 Filed12/21/12 perform, display, publish, distribute, transmit, broadcast, Page25 of or otherwise 27 exploit the Insta gram Content. Instagram name anl logo are trademarks of Instagram and may not be copied, irritated or used, in whole or prior written permission of Instagram, except in accordance with our brand guidelines, available here: hitp //help instagrarncornrcustorner/portalierticles/1824137. In addition, ali page headers, custom graphics, button icons and scripts are service marks, trademarks and/or trade dress of Instagram. and may not be copied, imitated or used, in whole or in part, without prior written permission from Instagram. B. The in part, without the Instagrants Intention for the Service to be available as much as possible, there will be occasions wbenthelervice meY_Oit intermted, including, without linitakon, for scheduied maintenance or upgrades, for emergency repairs, or due to failure of telecomminications links and/or equipment. Also, Instagram reserves the right to remove any Content from the Service for any reason, without prior notice. Content removed from the Service may continue to be stored by lnstagram, including, without limitation, in order to comply with certain legal 7. Although it Is obligations, but may not be retrievable without a valid court order. Consequently, instagram encourages you to own backup of your Content. In other words, Instagram is not a backup service and you agree that maintain your you will not rely on the Service for the purposes of Content backup or storage. Instagram will not be liable to you for any modification, suspension, or discontinuation of the Services, or the loss of any Content. You also acknowledge that the Internet may be information may not be subject to breaches of security and that the submission of Content or other secure. 9. You agree that Instagram is not responsible for, and does nol endorse, Content posted within the Service. Instagram does not have any obligation to prescreen, rnonitor, edit, or remove any Content. If your Content violates these Terms of Use, you may bear legal 9. responsibility for that Content. otherwise described In the Service's Privacy Racy, available at http://Instagram.cornlegal/privacy/, as between you and Instagram, any Content wit be non-confidential and non-proprietary and we will not be table for Except as any use or disclosure of Content. You acknowledge and agree that your relationship with instagrarn is not a confidential, fiduciary, or other type of special relationship, and that your decision to submit any Content does not place Instagram In a position that is any different from the position held by members of the general public, including with regard to your Content. None of your Content will be subject to any obligation of confidence on the part of Instagram, and Instagram will not be liable for any use or disclosure of any Content you provide. 10. It is to accept or consider content, information, ideas, suggestions or other materials other specifically requested and to which certain specific terms, conditions and requirements may apply. This Is to avoid any misunderstandings if your ideas are similar to those we have developed or are developing Independently. Accordingly, Instagram does not accept unsolicited materials or ideas, and takes no responsibility for any materials or ideas so transmitted. If, despite our policy, you choose to send us content, information, ideas, suggestions, or other materials, you further agree that instagram is free to use any such content, information, Ideas, suggestions or other materials, for any purposes whatsoever, including, without 'irritation. developing and marketing products and services, without any liability or payment of any kind to you. InstagranYs policy not than those we have Reporting Copyright and Other IP Violations 1. We respect other people's and 2. We rights, expect you to do the same. help you protect your intellectual property rights. To learn rnore about how to report provide claims of intelectual property infringement, visit: http/Melp.InstagrarricortIcustomeriportalfertictes/270501 3. If you you with tools to repeatedly infringe other people's intellectual property rights, we will disable your account when appropriate. Disclaimer of Warranties THE SERVICE. INCLUDING, WITHOUT LIMITATtON, INSTAGRAM CONTENT, IS PROVIDED ON AN AS IS", 'AS AVAILABLE' AND 'WITH ALL FAULTS' BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER INSTAGRAM NOR ITS PARENT COMPANY NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS OR AGENTS (COLLECTIVELY, THE 'INSTAGRAM PARTIES') MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE SERVICE; (8) THE INSTAGRAM CONTENT; (C) USER CONTENT; OR (0) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO INSTAGRAM OR VIA THE SERVICE. IN ADDITION, THE INSTAGRAM PARTIES HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM. TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. THE INSTAGRAM PARTIES DO NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SERVICE OR THE SERVER THAT MAKES THE SERVICE Ak/AILABLE IS FREE FROM ANY HARMFUL COMPONENTS, INCLUDING, WITHOUT LIMITATION, VIRUSES. THE INSTAGRAM PARTIES 00 NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT TI-E INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE SERVICE IS ACCURATE. COMPLETE, OR USEFUL. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE INSTAGRAM PARTIES DO NOT WARRANT THAT YOUR USE OF THE SERVICE IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND THE INSTAGRAM PARTIES SPECIFICALLY DISCLAIM SUCH WARRANTIES. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU TO THE EXTENT SUCH JURISDICTION'S LAW IS APPLICABLE TO YDU AND THESE TERMS OF USE. BY ACCESSING OR USING THE SERVICE YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY JURISDICTION WHERE YOU ACCESS OR USE THE SERVICE. THE INSTAGRAM PARTIES DO NOT ENDORSE CONTENT AND SPECIFICALLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY TO ANY PERSON OR ENTITY FOR ANY LOSS, DAMAGE (WHETHER ACTUAL, CONSEQUENTIAL, PUNITIVE OR OTHERWISE), INJURY, CLAIM, LIABILITY OR OTHER CAUSE OF ANY KIND OR CHARACTER BASED UPON OR RESULTING FROM ANY CONTENT. Case3:12-cv-Q6482-NC Document1 Limitation of Filed12/21/12 Page26 of 27 Liability; Waiver UNDER NO CIRCUMSTANCES WILL THE INSTAGRAM PARTIES BE LIABLE TO YOU FOR ANY LOSS OR (INCLUDING, WITHOUT LIMITATION, FOR ANY DIRECT, INDIRECT, ECONOMIC, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL. LOSSES OR DAMAGES) THAT ARE DIRECTLY OR INDIRECTLY RELATED TO: (A) THE SERVICE; (13) THE INSTAGRAM CONTENT; (C) USER CONTENT; (D) YOUR USE OF, INABILITY TO USE, OR THE PERFORMANCE OF THE SERVICE; (E) AM' ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE INSTAGRAM PARTIES OR LAW ENFORCEMENT AUTHORITIES REGARDING YOUR OR ANY OTHER PARTY'S USEOF THE SERV(CE; IFI ANY ACTION TAKEN IN COWECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; (G) AM' ERRORS OR OMISSIONS IN THE SERVICE'S OPERATION; OR (H) ANY DAMAGE TO ANY USER'S COMPUTER, MOBILE DEVICE, OR OTIER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION, DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR, OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, LOSS OF DATA WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF FORESEEABLE OR EVEN IF THE INSTAGRAM PARTIES HAVE BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, STRICT LIABILITY OR TORT (INCLUDING, WITHOUT LIMITATION, WHETHER CAUSED IN WHOLE OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE. 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DAMAGES OF ANY KIND YOU AGREE THAT IN THE EVENT YOU INCUR ANY DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF INSTAGRAM'S ACTS OR OMISSIONS, THE DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEB SITE, SERVICE, PROPERTY, PRODUCT OR OTHER CONTENT OWNED OR CONTROLLED BY THE INSTAGRAM PARTIES, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT, PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY WEB SITE, PROPERTY PRODUCT, SERVICE, OR OTHER CONTENT OWNED OR CONTROLLED BY THE INSTAGRAM PARTIES. BY ACCESSING TI-E SERVICE. YOU UNDERSTAND THAT YOU MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1541 OF THE CML CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." INSTAGRAM IS NOT RESPONSIBLE FOR THE ACTIONS, CONTENT, INFORMATION. OR DATA OF THIRD PARTIES, AND YOU RELEASE US, OUR DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES. Indemnification You (and also any third party for whom you operate an account or activity on the Service) agree to defend (at Instagram's request), IndermIfy and hold the instagram Parties harmless from and against any claims, liabilities, damages, losses, and expenses, inclu5Ing without imitation, reasonable attorney's fees and costs, arising out of or in any way comected with any of the following (including as a resuk of your direct activities on the Service or those conducted on your behalf): (I) your Content or your access to or use of the Service; (ii) your breach or alleged breach of these Terms of Use; (ili) your violation of any third-party right, inclixfing without limitation, any intellectual property right, publicity, confidentially, property or privacy right; (iv) your violation of any laws, rules, regulations, codes, statutes, ordinances or orders of any governmental and quasi-governmental authorities, including, without imitation, all regulatory, administrative and legislative authorities; or (v) any misrepresentation made by you. You wit cooperate as fuly required by Instagram In the defense of any claim Instagram reserves the right to assume the exclusive defense and control of any miner subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of Instagram. Arbitration Except If you opt-out or for disputes relating to: (1) your or I nstagram's intellectual property (such as trademarks. trade dress, domain names, trade secrets, copyrights and patents); (2) violations of the API Terms; or (3) violations of provisions 13 or 15 of the Basic Terms, above ("Excluded Disputes"), you agree that at disputes between you and Instagram (whether or not such dispute Involves a third party) with regard to your relationship with Instagram, including without irritation disputes related to these Tema of Use, your use of the Service, andlor rights of privacy and/or publicity, wit be resolved by binding, individual arbitration under the American Arbitration Association's rules for arbitration of consumer-related disputes and you and Instagram hereby expressly waive trial by jury. As an alternative, you may bring your claim In your local 'small claims' court, if permitted by that small claims courrs rules. You may bring claims only on your own behalf. Neither you nor Instagrarn will participate In a class action or class-wide arbitration for any claims covered by this agreement. You also agree not to participate in claims brought in a private attorney genera( or representative capacity, or consoidated claims Involving another person's account, if Instagram is a pally to the proceeding. This dispute resolulion provislon will be governed by the Federal Arbitration Pct. In the event the American Arbitration Association Is unwilling or unable to set a hearing date within one hundred Case3:12-cv-,06482-NC Filed12/21/12 Document1 Page27 of 27 Sixty (160) days of Ming the ease, then either Instagram or elect to have the arbitration administered instead by the Judicial Arbitration and Mediation Services. Judgment on the award rendered by the arbitrator may Iss entered In any court having competent jurisdiction. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with these Terms of Use. and You mey opt out of this agreement to arbitrate. If you do so, neither you nor Instagram can require the other to an arbitration proceeding. To opt out, you must notify instagram in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out: participate in Instagram, LLC ATTN: Arbitration Opt-out 1601 Wiliow Rd. Menlo Park, You must include CA 94025 me1iitieO, th8i?wil iiddins you usiffe'r your Inittagram account opt out of this arbitration agreement. and a clear statement that you want to If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration section wit be null and void. This arbitration agreement will survive the termination of yois Time Limitation on reiationship with lnstagrarn Claims You agree that any claim you may have arising out of or related to your relationship with instagram must be filed within one year after such claim arose; otherwise, your claim is permanently barred. Governing Law & Venue These Terms of Use are governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. For any action at law or in equity relating to the arbitration provision of these Terms of Use, the Excluded Disputes or if you opt out of the agreement to arbitrate, you agree to resolve any dispute you have with Instagram exclusively In a state or federal court located in Santa Clara. California, and to submit to the personal jurisdiction of the courts located In Santa Clara County for the purpose of litigating all such disputes. if any provision of these Terms of Use is held to be unlawful, void, or for any reason unenforceable during arbitration by a court of competent jurisdiction, then that provision will be deemed severable from these Terms of Use and will or not affect the validity and enforceability of any remaining provisions. Instagram's failure to insist upon or enforce strict performance of any provision of these Terms will not be construed as a waiver of any provision or right. No waiver of any of these Terms will be deemed a further or continuing waiver of such term or condition or any other term or condition. Instagram reserves the right to change this dispute resolution provision, but any such changes will not apply to disputes arising before the effective date of the amendment. This dispute resokrtlon provision wit survive the termination of any or all of your transactions with Instagram, Entire Agreement If you are using the Service on behalf of a legal entity, you represent that you are authorized to enter into an agreement on behalf of that iegal entity. These Terms of Use constitute the entire agreement between you arid Instagram and governs your use of the Service, superseding any prior agreements between you and instagram. You will not assign the Terms of Use or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of instagram. Any purported assignment or delegation by you without the appropriate prior written consent of instagram wit be nue and void. Instegram may assign these Terms of Use or any rights hereunder without your consent. If any provision of these Terms of Use is found by a court of competent Orisdiction to be invalid or otherwise unenforceable, the parties nevertheless agree that such portion wit be deemed severable from these Terms of Use and will not affect the validity and enforceabitty of the remaining provisions, and the remaining provisions of the Terms of Use remain In full force and effect. Neither the course of conduct between the parties nor trade practice will act to modify the Terms of Use. These Terms of Use do not confer any third-party beneficiary rights. Territorial Restrictions The inforrnstion provided within tha Service is not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would ba contrary to law or regulation or which would subject instagram to any registration requirement Within such jurisdiction or country. We reserve the right to limit the availability of the Service or eny portlon of the Service, to any person, geographic area, or jurisdiction, at any tirte and in our sole discretion, and to limit the quantities of any content, program, product, service or other feature that Instagram provides. Software related to or made available by the Service may be subject to United States escort controls. Thus, no software from the Service may be downloaded, exported or re-exported: (a) into (or to a national or resident of) any country to which the United States has embargaed goods; or (b) to anyone on the U.S. Treasury Department's list of or the U.S. Commerce Department's Table of Deny Orders. By downloading any software related to the Service, you represent and warrant that you are not located in, under the control of, or a nationst or resident of, any such country or on any such list. Specially Designated Nationals The effective date of these Terms of Use is January 19, 2013. These Terms of Use were written in English (US). lb English version, the English version the extent any translated version of these Terms of Use conflicts with the controls. YOUR ACCOUNT ABOUT US SUPPORT SLOG API JOBS PRIVACY TERMS 65 2012 INSTAGRAM Case3:12-cv-06482-NC Filed12/21/12 Document1-1 2 Page.lnnof i a 46 44 CAND CIVIL COVER SHEET (Rev. 12/11) The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadin by local rules of court. This form, approved by the Judicial Conference oldie United States in September 1974, is required for t the civil docket Shed. (SEE INSTRUCTIONS Ws) PLAINTIFFS ircd by law, except as provide( of Court for thc purpose of mitiatini of thc Cie ON NEXT PAGE OF THIS FORM DEFENDANTS Instagram, Inc.; Instagram, LLC Lucy Funes (b) County of Residence of First Listed (EXCEPT IN U.S. Plaintiff County PLAINTIFF of Residence of First Listed CASES) IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys Telephone Number) and AtIOGgR(Firm Notatt_Address. Defendant. (IH U.S. PLAINTIFF CASES ONLY) NOTE; CC) paperVNnreq ot or e Finkelstein rinsk, LLP 501 West Broadway, Ste. 1250, San Diego, CA 92101 619-238-1333 (Place an "X" In One Box Only) II. BASIS OF JURISDICTION afx..NAre AD11 III. CITIZENSHIP OF PRINCIPAL PARTIES (Place (For Diversity Ca.111.7 Only) 3 1 0 U.S. Government 3 Federal Question PTV (U.S. Government Not a Pony) Plaintiff X Citizen of This State un "X" Iii One Box for Plaintiff and One Box for I DEF CI Defendant) ITF Incorporated I or DEE 0 Principal Place 4 X 4 of Business In This State .q t 3 2 X U.S. Government 4 Diversity 0 2 0 2 Incorporated 1 5 1 5 3 Citizen of Another State 3 3 3 Foreign 1 6 1 6 and Principal Place of klusineas II) Another State (hdieate Citizenship of Parties in Item III) Defendant Citizen Of Subject of a Nation Foreisn Country IV. NATURE OF SUIT (Place I 0 310 3 130 Miller Act 1 315 Airplane Airplane Liability 3 ISO FORFEITUREIPENALTY 1 365 Personal 0 367 Health Product 0 330 Federal 3 151 Medicare Act 0 3 I Liability 1 371 Truth in 1 380 Other Personal Product 3 I Liability Liability 3 360 Other Perional Franchise Injury 1 Injury Malpractice 1 362 Personal Med. I REAL PROPERTY 1 440 Other Civil 3 220 Foreclosure 3 441 0 230 Rent Lease & Ejectment 1 442 1 443 1 240 Torts to Land Liability Al/ Other Real Property 290 0 Property Damage Property Damage Product Liability Voting Employment Housing/ 510 Motions Habeas CI Proceedina 540 Mandamus & Other VI. 560 Civil Detainee VIII. RELATED CASE(S) IF ANY 0 899 Administrative Procedure Act/Review DATE oltrr in (Ina lin,. [IMO Immigration Actions Confinement 0 4 Reinstated or 0 5 Reopened X3 CHECK IF THIS IS A CLASS ACTION UNDER F.R, C.P. 23 /2/21 2.0/Vo IN Appeal o( State Statute, Transferred from another district JUDGE Hon. Ricahrd G. 0 6 Mtiltidistrict Litigation (Do not eft. Jorlsollettonol statutes ottlest liver:kW 3344, bailment; and UCL only if demanded in complaint: 0 No Pi Yes JURY DEMAND: Civ. Code CHECK YES DEMAND S DOCKET NUMBER 3:11-cv-01726 Seeborg IX. DIVISIONAL ASSIGNMENT (Civil L.R. 3-2) (1.1....a or Agency Decision 0 950 Constitutionality of (Prisoner Petition) 1 465 Other Conditions of (See Ins(ructions). FEDERAL, TAX SUITS Application Corpus Brief description of cause: Misappropriation of Property Rights, in breach of contract, Cal. VII, REQUESTED COMPLAINT: 896 Arbitration Alien Detainee 129ruth.g.uciivilStateu tirsw.chlli208iare filing 332(dtr2n8 CAUSE OF ACTION. IN 895 Freedom of Information Act Empl. Rea. Inc. Security Act, 0 463 Habeas Rights Remanded from Appellate Court 893 Environmental Mittens 26 USC 7609 0 3 1 Exchange Statutory Action* 891 Agricultural Acts IMMIGRATION 550 Civil State Court 190 Other CI 462 Naturalization 555 Prison Condition (Pace an "X" Le One Bol Only) 2 Removed from 0 0 SAN FR A NCISCOIOA KI.A ND 0 SIGNATURE OF ATTORNEY OF RECORD SAN JOSE 0 k.. , 850 Securities/Commodities/ CI 870 Taxes (U.S. Plaintiff Penalty CI I 490 Cable/Sat TV CI Litigation Defendant) 0 871 IRS--Third Party 0 Other 0 Leave Act 0 790 Other Lebor 480 Consumer Credit 0 0 551(405(g)) or Employment V. ORIGIN xi Original 0 865 to Vacate n 446 Amer. w/Disabilities 3 448 Education (1395(1) Black Lung (923) DIWC/131WW (405(g)) 3 1164 SSJD Tille XVI Corpus: 535 Death Deportation 1 3 163 530 General 0 470 Racketeer Influenced snd 0 1 862 Act Labor/Mgmt. Relations 0 740 Railway Labor Act 0 751 Family and Medical Sentence 0 Banking 450 Commerce Corrupt Orpnizations 1 161 HIA CI 720 PRISONER PETITIONS Rights Accommodations CI 445 Amer. w/Disabilities 3 245 Tort Product Lending 0 710 Pair Labor Standards 1 791 CIVIL RIGHTS 1 210 Land Condemnation 385 430 Banks and 460 0 1 350 Motor Vehicle Contract Product Reapportionment 0 Copyrights SOCIAL SECURITY LABOR 0 355 Motor Vehicle 1 19 400 State 410 Antitrust 3 1 840 Trademark Stockholders' Saila X 19 Other Contract 1 375 False Chime Act 0 1 830 Patent PERSONAL PROPERTY 1 370 Other Freud 3 16 PROPERTLFIGHTS 3 820 of Veteran's Benefits 3 1 0 Care/, Injury Product Liability 1 340 Marine 28 USC 1511 0 423 Withdrawal 368 Asbestos Personal 3 345 Marine Product Appeal er 0 690 OthCI 28 USC 157 Injury Product Liability Employers' Student Loans 0 422 Personal Liability (End. Veterans) Recovery of Overpayment Injury Liability OTHER STATUTES BANKRUPTCY Drug Related Seizure of Property 21 USC 881 Phirmaceutical & Enforcement of 1 152 Recovery of Defaulted 3 625 PERSONAL INJURY Product Negotiable Inatniment Recovery of Overpayment 0 320 A remelt, Libel & Slander Judgment 1 140 Only) PERSONAL INJURY 3 120 Marine -Nb "X" in One Box TORTS ri 110 !Insurance Ssc an CONTRACT EUREKA (N.D. Cal) 7... (\a, Case3:12-cv-06482-NC or 4544 CAND Document1-1 Filed12/21/12 Page2 of 2 (am 12/11) INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44 Authority For Civil Cover Sheet The JS 44 civil cover sheet snd the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by Is, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk civil cover skeet is submitted to the Clerk of Court for each civil complaint flied. The attorney o Court for tbe purpose of initiating the civil docket sheet. Consequently, iliv, ng a case should complete the form as follows: (a) Plat ntiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. I. name or standard abbreviations. If the and title. (b) County of Residence. If the plaintiff or defendant is a government agency, use only the full plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the "defendant" Is the location of the tract of land Involved.) plaintiff cases, enter the name of the county in In U.S. (c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, iht them on an section "(see attachment)". Jurisdiction. The basis of jurisdiction I. set forth under Rule 8(a), F.R.C.P., which requires that 11. boxes. If there k more than one basis of jurisdiction, precedence is given in the order shown below. United States plaintiff. (1) Jurisdiction based on 28 U.S.C. 1345 United States defendant. Federal an (2) question. (3) This act of Congress or a When the plaintiff iv suing the and 1348. Suits jurisdictions be by agencies and officers of the United States, Its officers or United States Residence are pleadings. Place an "X" in one of the Included here. "X" in this box. agencies, place an refers to suits under 28 U.S.C. 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, In cases where the U.S. Is party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. treaty of the United States. Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. parties must be checked. (See Section III below; federal question actions take precedence over diversity cases.) 1111. shown in attachment, noting in this (citizenship) of Principal Parties. This section of the JS 441. to be completed if diversity When Box 4 I. checked, the of citizenship was citizenship of the different indicated above. Mark this section for each principal party. Nature of Suit. Place an "X" in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section Vl below, is sufficient to IV. enable the deputy clerk or the statistical clerks in the Administrative Office to determine the nature of suit. If the cause flts more than one nature of suit, select the most definitive. V. Origin. Place an "X" in one of the seven boxes. Original Proceedings. (I) Cases which originate in the United States district courts. Removed from State Court (2) Proceedings initiated In state courts may be removed to the district courts under Title 28 U.S.C., Section 1441. When the removal is granted, check this box. Remanded from Appellate Court. (3) Check this box for Reinstated or Reopened. (4) Check this box for cases remanded to the district court for further action. Use the date of remand reinstated cases or reopened in the district court. Use the reopening date as the as the petition for filing date. Ming date. Transferred from Another District (5) For cases transferred under Title 28 U.S.C. Section 1404(a). Do not use this for within district transfers or multidistrict litigation transfer'. Mulddistrict Litigation. (6) Check this box when a multidlstrict case is transferred into the district under authority of Title 28 U.S.C. Section 1407. When this box is checked, do not check (5) above. Judge kom Magistrate Judgment. (7) Check this box Appeal to District VI. Cause of Action, diversity. VII. Requested in Complaint. Class Action. Jury Demand. Check the appropriate Place an "X" in this box if you appeal from a magistrate judge's decision. are filing a class action under Rule (in thousands of dollars) being demanded or indicate other box to indicate whether or not a jury is being Related Cases. This section of the JS 44 is used to reference related corresponding judge names for such IX. an Report the civil statute directly related to the cause of action and give a brief description of the cause. Example: U.S. Civil Statute: 47 USC 553 Brief Description: Unauthorized reception of cable service Demand. In this space enter the dollar amount VIII. for Do not cite jurisdictional statutes unless 13, F.R.Cv.P. demand such as a preliminary injunction. demanded. pending MO if any. If there are related pending cases, insert the docket numbers and the cases. Divisional Assignment. In accordance with Civii L.R. 3-2(c) (I), seiect the appropriate venue based upon the county in which substantial part of the events or or in which a substantiol part of the property that is the subject of the action is situated. omissions which give rise to the claim occurred Date and Attorney Signature. Dote and sign the civil cover sheet.