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Class Action Complaint — Shelia Edwards v. DialAmerica Marketing, Inc. (Document 1, filed May 16, 2022)

Summary

Class Action Complaint for Damages, Injunctive and Equitable Relief filed in the Southern District of California by Representative Plaintiff Shelia Edwards against Defendant DialAmerica Marketing, Inc. It alleges that a cyberattack between February 2, 2021 and July 9, 2021 (the "Data Breach") let cybercriminals access personally identifiable information and financial information stored in the defendant's information network. It alleges that the defendant did not begin notifying victims until April 2022 and that the letter to Representative Plaintiff is dated April 6, 2022. The complaint lists claims for Negligence, Breach of Implied Contract, Breach of the Implied Covenant of Good Faith and Fair Dealing, Unfair Business Practices, and Unjust Enrichment, and demands a jury trial.

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Cite this document

“Class Action Complaint — Shelia Edwards v. DialAmerica Marketing, Inc. (Document 1, filed May 16, 2022).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-3-22-cv-00689-dkt-1-s-d-cal-4a290f9103/, SHA-256 71f63f6f0c632d26c07367d923184d194ddb42d0b6b077de7b5eeed359dbe859.

Full text

                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.36 Page 1 of 33




                                                                    1    Scott Edward Cole, Esq. (S.B. #160744)
                                                                         Laura Grace Van Note, Esq. (S.B. #310160)
                                                                    2    Cody Alexander Bolce, Esq. (S.B. #322725)
                                                                         COLE & VAN NOTE
                                                                    3    555 12th Street, Suite 1725
                                                                         Oakland, California 94607
                                                                    4    Telephone: (510) 891-9800
                                                                         Facsimile: (510) 891-7030
                                                                    5    Email: sec@colevannote.com
                                                                         Email: lvn@colevannote.com
                                                                    6    Email: cab@colevannote.com
                                                                         Web: www.colevannote.com
                                                                    7
                                                                                                                                  '22CV0689 LL   BGS
                                                                    8    Attorneys for Representative Plaintiff
                                                                         and the Plaintiff Class(es)
                                                                    9
                                                                    10                               UNITED STATES DISTRICT COURT
                                                                    11                            SOUTHERN DISTRICT OF CALIFORNIA
                                                                    12




COLE & VAN NOTE
                                                                    13   SHELIA EDWARDS, individually, and on        Case No.
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                         behalf of all others similarly situated,
                                                                    14                                               CLASS ACTION
                                         OAKLAND, CA 94607
                                                                                               Plaintiff,
                                                                    15   vs.                                         COMPLAINT FOR DAMAGES,
                                          TEL: (510) 891-9800
                                                                                                                     INJUNCTIVE AND EQUITABLE RELIEF
                                                                    16   DIALAMERICA MARKETING, INC.,                FOR:
                                                                    17                         Defendant.            1. NEGLIGENCE;
                                                                                                                     2. BREACH OF IMPLIED CONTRACT;
                                                                    18                                               3. BREACH OF THE IMPLIED COVENANT
                                                                                                                        OF GOOD FAITH AND FAIR DEALING;
                                                                    19                                               4. UNFAIR BUSINESS PRACTICES;
                                                                                                                     5. UNJUST ENRICHMENT;
                                                                    20
                                                                    21                                               [JURY TRIAL DEMANDED]
                                                                    22
                                                                    23
                                                                    24
                                                                    25
                                                                    26
                                                                    27
                                                                    28

                                                                                                                     -1-
                                                                                                                                  COMPLAINT FOR DAMAGES,
                                                                                                                           INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.37 Page 2 of 33




                                                                    1    Representative Plaintiff alleges as follows:
                                                                    2
                                                                    3                                       INTRODUCTION
                                                                    4             1.    Representative Shelia Edwards (“Edwards” or “Representative
                                                                    5    Plaintiff”) brings this class action against Defendant DialAmerica Marketing, Inc.
                                                                    6    (“DialAmerica” or “Defendant”) for its failure to properly secure and safeguard
                                                                    7    Representative Plaintiff’s and Class Members’ personally identifiable information
                                                                    8    stored within Defendant’s information network, including, without limitation, their
                                                                    9    full names, addresses, Social Security numbers, employer assigned identification
                                                                    10   numbers, and financial account information (these types of information, inter alia,
                                                                    11   being hereafter referred to, collectively, as “personally identifiable information” or
                                                                    12   “PII”),1 and to properly secure and safeguard Representative Plaintiff’s and Class




COLE & VAN NOTE
                                                                    13   Members’ PII and financial information stored within Defendant’s information
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   network.
                                         OAKLAND, CA 94607
                                                                    15            2.    With this action, Representative Plaintiff seeks to hold Defendant
                                          TEL: (510) 891-9800       16   responsible for the harms it caused and will continue to cause Representative
                                                                    17   Plaintiff and the countless other similarly situated persons in the massive and
                                                                    18   preventable cyberattack that occurred between February 2, 2021 and July 9, 2021,
                                                                    19   by which cybercriminals infiltrated Defendant’s inadequately protected network
                                                                    20   servers and accessed highly sensitive PII and financial information which was being
                                                                    21   kept unprotected (the “Data Breach”).
                                                                    22
                                                                    23
                                                                    24
                                                                    25   1
                                                                             Personally identifiable information (“PII”) generally incorporates information
                                                                             that can be used to distinguish or trace an individual’s identity, either alone or
                                                                    26       when combined with other personal or identifying information. 2 C.F.R. § 200.79.
                                                                             At a minimum, it includes all information that on its face expressly identifies an
                                                                    27       individual. PII also is generally defined to include certain identifiers that do not
                                                                             on their face name an individual, but that are considered to be particularly
                                                                    28       sensitive and/or valuable if in the wrong hands (for example, Social Security
                                                                             numbers, passport numbers, driver’s license numbers, financial account numbers).
                                                                                                                     -2-
                                                                                                                                  COMPLAINT FOR DAMAGES,
                                                                                                                           INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.38 Page 3 of 33




                                                                    1          3.     Representative Plaintiff further seeks to hold Defendant responsible for
                                                                    2    not ensuring that the compromised PII was maintained in a manner consistent with
                                                                    3    industry and other relevant standards.
                                                                    4          4.     While Defendant says unauthorized access to its network occurred as
                                                                    5    early as July 4, 2021, it did not even begin notifying victims until April 2022—over
                                                                    6    year after the breach initially occurred. It did not immediately report the security
                                                                    7    incident to Representative Plaintiff or Class Members. Indeed, Representative
                                                                    8    Plaintiff and Class Members were wholly unaware of the Data Breach until they
                                                                    9    received letter(s) from Defendant informing them of it. Representative Plaintiff’s
                                                                    10   letter is dated April 6, 2022.
                                                                    11         5.     Defendant acquired, collected and stored Representative Plaintiff’s and
                                                                    12   Class Members’ PII and/or financial information.




COLE & VAN NOTE
                                                                    13         6.     Therefore, at all relevant times, Defendant knew, or should have
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   known, that Representative Plaintiff and Class Members would use Defendant’s
                                         OAKLAND, CA 94607
                                                                    15   networks to store and/or share sensitive data, including highly confidential PII,
                                          TEL: (510) 891-9800       16   because Defendant required that they provide this information to receive their
                                                                    17   products/services.
                                                                    18         7.     By obtaining, collecting, using, and deriving a benefit from
                                                                    19   Representative Plaintiff’s and Class Members’ PII, Defendant assumed legal and
                                                                    20   equitable duties to those individuals. These duties arise from state and federal
                                                                    21   statutes and regulations as well as common law principles.
                                                                    22         8.     Defendant disregarded the rights of Representative Plaintiff and Class
                                                                    23   Members by intentionally, willfully, recklessly, or negligently failing to take and
                                                                    24   implement adequate and reasonable measures to ensure that Representative
                                                                    25   Plaintiff’s and Class Members’ PII was safeguarded, failing to take available steps
                                                                    26   to prevent an unauthorized disclosure of data, and failing to follow applicable,
                                                                    27   required, and appropriate protocols, policies, and procedures regarding the
                                                                    28   encryption of data, even for internal use. As a result, the PII of Representative

                                                                                                                  -3-
                                                                                                                               COMPLAINT FOR DAMAGES,
                                                                                                                        INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.39 Page 4 of 33




                                                                    1    Plaintiff and Class Members was compromised through disclosure to an unknown
                                                                    2    and unauthorized third-party—an undoubtedly nefarious third-party that seeks to
                                                                    3    profit off this disclosure by defrauding Representative Plaintiff and Class Members
                                                                    4    in the future. Representative Plaintiff and Class Members have a continuing interest
                                                                    5    in ensuring that their information is and remains safe, and they are entitled to
                                                                    6    injunctive and other equitable relief.
                                                                    7
                                                                    8                              JURISDICTION AND VENUE
                                                                    9          9.     Jurisdiction is proper in this Court under 28 U.S.C. §1332 (diversity
                                                                    10   jurisdiction). Specifically, this Court has subject matter and diversity jurisdiction
                                                                    11   over this action under 28 U.S.C. § 1332(d) because this is a class action where the
                                                                    12   amount in controversy exceeds the sum or value of $5 million, exclusive of interest




COLE & VAN NOTE
                                                                    13   and costs, there are more than 100 members in the proposed class, and at least one
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   other Class Member is a citizen of a state different from Defendant.
                                         OAKLAND, CA 94607
                                                                    15         10.    Supplemental jurisdiction to adjudicate issues pertaining to California
                                          TEL: (510) 891-9800       16   state law is proper in this Court under 28 U.S.C. §1367.
                                                                    17         11.    Defendant routinely conducts business in California, has sufficient
                                                                    18   minimum contacts in California, and has intentionally availed itself of this
                                                                    19   jurisdiction by marketing, providing, and selling products/services, and by accepting
                                                                    20   and processing payments for those products/services within California. Defendant
                                                                    21   employed Representative Plaintiff in this judicial district. During all relevant times,
                                                                    22   Representative Plaintiff has been domiciled in this district and she provided the
                                                                    23   information accessed in the Data Breach to Defendant in this district.
                                                                    24         12.    Venue is proper in this Court under 28 U.S.C. § 1391 because the events
                                                                    25   that gave rise to Representative Plaintiff’s claims took place within the Southern
                                                                    26   District of California, and Defendant does business in this judicial district.
                                                                    27
                                                                    28

                                                                                                                   -4-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.40 Page 5 of 33




                                                                    1                                        PLAINTIFF
                                                                    2          13.    Representative Plaintiff is an adult individual and, at all relevant times
                                                                    3    herein, a resident of the State of California. Representative Plaintiff is a victim of
                                                                    4    the Data Breach.
                                                                    5          14.    Prior to the Data Breach, Representative Plaintiff was employed by
                                                                    6    Defendant.
                                                                    7          15.    Defendant collected PII and financial information from Representative
                                                                    8    Plaintiff. As a result, Representative Plaintiff’s information was among the data
                                                                    9    accessed by an unauthorized third-party in the Data Breach.
                                                                    10         16.    At all times herein relevant, Representative Plaintiff is and was a
                                                                    11   member of the Classes.
                                                                    12         17.    Representative Plaintiff provided Defendant with highly sensitive




COLE & VAN NOTE
                                                                    13   personal and financial information.
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14         18.    Representative Plaintiff’s PII was exposed in the Data Breach because
                                         OAKLAND, CA 94607
                                                                    15   Defendant stored and/or shared Representative Plaintiff’s PII and financial
                                          TEL: (510) 891-9800       16   information. Representative Plaintiff’s PII and financial information was within the
                                                                    17   possession and control of Defendant at the time of the Data Breach.
                                                                    18         19.    Representative Plaintiff received a letter from Defendant, dated April
                                                                    19   6, 2022, informing Representative Plaintiff that her PII and/or financial information
                                                                    20   was involved in the Data Breach (the “Notice”). The Notice explained that
                                                                    21   Defendant detected unusual activity on its network and took steps to secure the
                                                                    22   systems, but not until an unauthorized third-party gained access to Defendant’s
                                                                    23   network and accessed Representative Plaintiff’s PII and financial information stored
                                                                    24   thereon. Defendant claims to have detected and determined the breach itself took
                                                                    25   place between February 2, 2021 and July 9, 2021. Defendant did not inform
                                                                    26   Representative Plaintiff prior to the Notice dated April 6, 2022.
                                                                    27         20.    Representative Plaintiff has already spent and will continue to spend
                                                                    28   time dealing with the consequences of the Data Breach. This includes, without

                                                                                                                  -5-
                                                                                                                               COMPLAINT FOR DAMAGES,
                                                                                                                        INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.41 Page 6 of 33




                                                                    1    limitation, time spent verifying the legitimacy and impact of the Data Breach,
                                                                    2    exploring credit monitoring and identity theft insurance options, self-monitoring
                                                                    3    various accounts, and seeking legal counsel regarding options for remedying and/or
                                                                    4    mitigating the effects of the Data Breach. This time has been lost forever and cannot
                                                                    5    be recaptured.
                                                                    6          21.    Representative Plaintiff suffered actual injury in the form of damages
                                                                    7    to and diminution in the value of Representative Plaintiff’s PII—a form of intangible
                                                                    8    property that Representative Plaintiff entrusted to Defendant which was
                                                                    9    compromised in and as a result of the Data Breach.
                                                                    10         22.    Representative Plaintiff suffered lost time, annoyance, interference, and
                                                                    11   inconvenience as a result of the Data Breach and has anxiety and increased concerns
                                                                    12   for the loss of privacy, as well as anxiety over the impact of cybercriminals accessing




COLE & VAN NOTE
                                                                    13   and using sensitive PII and/or financial information.
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14         23.    Representative Plaintiff has suffered imminent and impending injury
                                         OAKLAND, CA 94607
                                                                    15   arising from the substantially increased risk of fraud, identity theft, and misuse
                                          TEL: (510) 891-9800       16   resulting from Representative Plaintiff’s PII and financial information, in
                                                                    17   combination with Representative Plaintiff’s name, being placed in the hands of
                                                                    18   unauthorized third parties.
                                                                    19         24.    Representative Plaintiff has a continuing interest in ensuring that the
                                                                    20   PII and financial information, which, upon information and belief, remains backed
                                                                    21   up in Defendant’s possession, is protected and safeguarded from future breaches.
                                                                    22
                                                                    23                                      DEFENDANT
                                                                    24         25.    Defendant DialAmerica Marketing, Inc. is a Delaware corporation
                                                                    25   with a principal place of business located at 960 Macarthur Boulevard Mahwah,
                                                                    26   New Jersey 07430.
                                                                    27         26.    Defendant provides call center outsourcing services across the United
                                                                    28   States.

                                                                                                                   -6-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.42 Page 7 of 33




                                                                    1          27.     The true names and capacities of persons or entities, whether
                                                                    2    individual, corporate, associate, or otherwise, who may be responsible for some of
                                                                    3    the claims alleged here are currently unknown to Representative Plaintiff.
                                                                    4    Representative Plaintiff will seek leave of court to amend this Complaint to reflect
                                                                    5    the true names and capacities of such other responsible parties when their identities
                                                                    6    become known.
                                                                    7
                                                                    8    CLASS ACTION ALLEGATIONS
                                                                    9          28.     Representative Plaintiff brings this action pursuant to the provisions of
                                                                    10   Rules 23(a), (b)(2), and (b)(3) of the Federal Rules of Civil Procedure, on behalf of
                                                                    11   Representative Plaintiff and the following classes/subclass(es) (collectively, the
                                                                    12   “Classes”):




COLE & VAN NOTE
                                                                    13
                                     555 12TH STREET, SUITE 1725
                                                                                       Nationwide Class:


                  ATTORNEYS AT LAW
                                                                                       “All individuals within the United States of America whose PII
                                                                    14                 and/or financial information was exposed to unauthorized third
                                         OAKLAND, CA 94607                             parties as a result of the data breach that occurred between
                                                                    15                 approximately February 2, 2021 and July 9, 2021.”
                                          TEL: (510) 891-9800       16
                                                                                       California Subclass:
                                                                    17                 “All individuals within the State of California whose PII and/or
                                                                                       financial information was exposed to unauthorized third parties
                                                                    18                 as a result of the data breach that occurred between
                                                                                       approximately February 2, 2021 and July 9, 2021.”
                                                                    19
                                                                    20         29.     Excluded from the Classes are the following individuals and/or entities:
                                                                    21   (a) Defendant and Defendant’s         parents, subsidiaries, affiliates, officers and
                                                                    22   directors, and any entity in which Defendant has a controlling interest; (b) all
                                                                    23   individuals who make a timely election to be excluded from this proceeding using
                                                                    24   the correct protocol for opting out; (c) any and all federal, state or local governments,
                                                                    25   including but not limited to its departments, agencies, divisions, bureaus, boards,
                                                                    26   sections, groups, counsels, and/or subdivisions; and (d) all judges assigned to hear
                                                                    27   any aspect of this litigation, as well as their immediate family members.
                                                                    28

                                                                                                                    -7-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.43 Page 8 of 33




                                                                    1          30.    Representative Plaintiff reserves the right to request additional
                                                                    2    subclasses be added, as necessary, based on the types of PII and financial
                                                                    3    information that were compromised and/or the nature of certain Class Members’
                                                                    4    relationship(s) to the Defendant. At present, collectively, Class Members include,
                                                                    5    inter alia, all persons within the United States whose data was accessed in the Data
                                                                    6    Breach.
                                                                    7          31.    Representative Plaintiff reserves the right to amend the above definition
                                                                    8    in subsequent pleadings and/or motions for class certification.
                                                                    9          32.    This action has been brought and may properly be maintained as a class
                                                                    10   action under Federal Rule of Civil Procedure Rule 23 because there is a well-defined
                                                                    11   community of interest in the litigation and membership in the proposed classes is
                                                                    12   easily ascertainable.




COLE & VAN NOTE
                                                                    13
                                     555 12TH STREET, SUITE 1725
                                                                                      a.     Numerosity: A class action is the only available method for the


                  ATTORNEYS AT LAW
                                                                                             fair and efficient adjudication of this controversy. The members
                                                                    14                       of the Plaintiff Classes are so numerous that joinder of all
                                         OAKLAND, CA 94607                                   members is impractical, if not impossible. Representative
                                                                    15                       Plaintiff is informed and believes and, on that basis alleges, that
                                          TEL: (510) 891-9800
                                                                                             the total number of Class Members is in the hundreds of
                                                                    16                       thousands of individuals. Membership in the Classes will be
                                                                                             determined by analysis of Defendant’s records.
                                                                    17
                                                                                      b.     Commonality: Representative Plaintiff and the Class Members
                                                                    18                       share a community of interests in that there are numerous
                                                                                             common questions and issues of fact and law which predominate
                                                                    19                       over any questions and issues solely affecting individual
                                                                                             members, including, but not necessarily limited to:
                                                                    20
                                                                                                 1) Whether Defendant had a legal duty to Representative
                                                                    21                           Plaintiff and the Classes to exercise due care in collecting,
                                                                                                 storing, using, and/or safeguarding their PII;
                                                                    22
                                                                                                 2) Whether Defendant knew, or should have known, of the
                                                                    23                           susceptibility of its data security systems to a data breach;
                                                                    24                           3) Whether Defendant’s security procedures and practices to
                                                                                                 protect its systems were reasonable in light of the measures
                                                                    25                           recommended by data security experts;
                                                                    26                           4) Whether Defendant’s failure to implement adequate data
                                                                                                 security measures allowed the Data Breach to occur;
                                                                    27                           5) Whether Defendant failed to comply with its own policies
                                                                                                 and applicable laws, regulations, and industry standards
                                                                    28                           relating to data security;

                                                                                                                   -8-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.44 Page 9 of 33




                                                                    1
                                                                                           6) Whether Defendant adequately, promptly, and accurately
                                                                    2                      informed Representative Plaintiff and Class Members that
                                                                                           their PII had been compromised;
                                                                    3
                                                                                           7) How and when Defendant actually learned of the Data
                                                                    4                      Breach;
                                                                    5                      8) Whether Defendant’s conduct, including its failure to act,
                                                                                           resulted in or was the proximate cause of the breach of its
                                                                    6                      systems, resulting in the loss of the PII of Representative
                                                                                           Plaintiff and Class Members;
                                                                    7
                                                                                           9) Whether Defendant adequately addressed and fixed the
                                                                    8                      vulnerabilities which permitted the Data Breach to occur;
                                                                    9                      10) Whether Defendant engaged in unfair, unlawful, or
                                                                                           deceptive practices by failing to safeguard the PII of
                                                                    10                     Representative Plaintiff and Class Members;
                                                                    11                     11) Whether Representative Plaintiff and Class Members are
                                                                                           entitled to actual and/or statutory damages and/or whether
                                                                    12                     injunctive, corrective and/or declaratory relief and/or an
                                                                                           accounting is/are appropriate as a result of Defendant’s



COLE & VAN NOTE
                                                                    13                     wrongful conduct;
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                  ATTORNEYS AT LAW
                                                                    14                     12) Whether Representative Plaintiff and Class Members are
                                         OAKLAND, CA 94607
                                                                                           entitled to restitution as a result of Defendant’s wrongful
                                                                    15                     conduct.
                                          TEL: (510) 891-9800       16             c.    Typicality: Representative Plaintiff’s claims are typical of the
                                                                                         claims of the Plaintiff Classes. Representative Plaintiff and all
                                                                    17                   members of the Plaintiff Classes sustained damages arising out
                                                                                         of and caused by Defendant’s common course of conduct in
                                                                    18                   violation of law, as alleged herein. The same event and conduct
                                                                                         that gave rise to Representative Plaintiff’s claims are identical to
                                                                    19                   those that give rise to the claims of every Class Member because
                                                                                         Representative Plaintiff and Class Members’ Stored Data was
                                                                    20                   compromised in the same way by the same conduct of
                                                                                         Defendant. Representative Plaintiff and Class Members face
                                                                    21                   identical threats resulting from the resetting of their hard drives
                                                                                         and/or access by cybercriminals to the Stored Data maintained
                                                                    22                   thereon.
                                                                    23             d.    Adequacy of Representation: Representative Plaintiff in this
                                                                                         class action is an adequate representative of each of the Plaintiff
                                                                    24                   Classes in that Representative Plaintiff has the same interest in
                                                                                         the litigation of this case as the Class Members, is committed to
                                                                    25                   vigorous prosecution of this case, and has retained competent
                                                                                         counsel who are experienced in conducting litigation of this
                                                                    26                   nature. Representative Plaintiff is not subject to any individual
                                                                                         defenses unique from those conceivably applicable to other Class
                                                                    27                   Members or the Classes in their entirety. Representative Plaintiff
                                                                                         anticipates no management difficulties in this litigation.
                                                                    28                   Representative Plaintiff and its counsel will fairly and adequately
                                                                                         protect the interests of all Class Members.
                                                                                                               -9-
                                                                                                                            COMPLAINT FOR DAMAGES,
                                                                                                                     INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.45 Page 10 of 33




                                                                    1
                                                                                      e.    Superiority of Class Action: The damages suffered by individual
                                                                    2                       Class Members are significant but may be small relative to the
                                                                                            enormous expense of individual litigation by each member. This
                                                                    3                       makes, or may make it, impractical for members of the Plaintiff
                                                                                            Classes to seek redress individually for the wrongful conduct
                                                                    4                       alleged herein. Even if Class Members could afford such
                                                                                            individual litigation, the court system could not. Should separate
                                                                    5                       actions be brought or be required to be brought by each
                                                                                            individual member of the Plaintiff Classes, the resulting
                                                                    6                       multiplicity of lawsuits would cause undue hardship and expense
                                                                                            for the Court and the litigants. The prosecution of separate
                                                                    7                       actions would also create a risk of inconsistent rulings which
                                                                                            might be dispositive of the interests of other Class Members who
                                                                    8                       are not parties to the adjudications and/or may substantially
                                                                                            impede their ability to adequately protect their interests.
                                                                    9                       Individualized litigation increases the delay and expense to all
                                                                                            parties, and to the court system, presented by the complex legal
                                                                    10                      and factual issues of the case. By contrast, the class action device
                                                                                            presents far fewer management difficulties and provides benefits
                                                                    11                      of single adjudication, economy of scale, and comprehensive
                                                                                            supervision by a single court.
                                                                    12
                                                                                33. Class certification is proper because the questions raised by this



COLE & VAN NOTE
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                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   Complaint are of common or general interest affecting numerous persons, such that
                                         OAKLAND, CA 94607
                                                                    15   it is impracticable to bring all Class Members before the Court individually.
                                          TEL: (510) 891-9800       16          34. This class action is also appropriate for certification because Defendant
                                                                    17   has acted and/or has refused to act on grounds generally applicable to the Classes,
                                                                    18   thereby requiring the Court’s imposition of uniform relief to ensure compatible
                                                                    19   standards of conduct toward Class Members and making final injunctive relief
                                                                    20   appropriate with respect to the Classes in their entireties. Defendant’s policies
                                                                    21   challenged herein apply to and affect Class Members uniformly. Representative
                                                                    22   Plaintiff’s challenge of these policies hinges on Defendant’s conduct with respect to
                                                                    23   all Class Members, not on facts or law uniquely applicable to the Representative
                                                                    24   Plaintiff.
                                                                    25          35. Unless a Class-wide injunction is issued, Defendant’s violations may
                                                                    26   continue, and Defendant may continue to act unlawfully as set forth in this
                                                                    27   Complaint.
                                                                    28

                                                                                                                 -10-
                                                                                                                               COMPLAINT FOR DAMAGES,
                                                                                                                        INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.46 Page 11 of 33




                                                                    1    COMMON FACTUAL ALLEGATIONS
                                                                    2    The Cyberattack
                                                                    3          36.      In the course of the Data Breach, one or more unauthorized third parties
                                                                    4    accessed Class Members’ sensitive data including, but not limited to, full names,
                                                                    5    addresses, employer assigned identification numbers, Social Security numbers, and
                                                                    6    financial account information. Representative Plaintiff was among the individuals
                                                                    7    whose information was accessed in the Data Breach.
                                                                    8          37.      According to the sample data breach notification Defendant provided
                                                                    9    to the California Attorney General’s Office on April 21, 2022,2 Defendant learned
                                                                    10   that its network was accessed by an unauthorized third-party on July 4, 2021.
                                                                    11         38.      Representative Plaintiff was provided this information upon receipt of
                                                                    12   the Notice, dated April 6, 2022. Representative Plaintiff was not aware of the Data




COLE & VAN NOTE
                                                                    13   Breach until receiving the Notice.
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14
                                         OAKLAND, CA 94607
                                                                    15   Defendant’s Failed Response to the Breach
                                          TEL: (510) 891-9800       16         39.      Not until approximately nine months after it claims to have discovered
                                                                    17   the Data Breach did Defendant begin sending the Notice to persons whose PII and/or
                                                                    18   financial information Defendant confirmed was potentially compromised as a result
                                                                    19   of the Data Breach. The Notice provided basic details of the Data Breach and
                                                                    20   Defendant’s recommended next steps.
                                                                    21         40.      Upon    information    and     belief,   the   unauthorized   third-party
                                                                    22   cybercriminals gained access to Representative Plaintiff’s and Class Members’ PII
                                                                    23   and financial information with the intent of misusing, marketing and selling said
                                                                    24   information.
                                                                    25         41.      Defendant had and continues to have obligations created by reasonable
                                                                    26   industry standards, common law, state statutory law, and its own assurances and
                                                                    27
                                                                         2
                                                                    28        https://oag.ca.gov/system/files/Dial%20America%20Sample%20Notice.pdf
                                                                         (last accessed May 11, 2022).
                                                                                                                     -11-
                                                                                                                                   COMPLAINT FOR DAMAGES,
                                                                                                                            INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.47 Page 12 of 33




                                                                    1    representations to keep Representative Plaintiff’s and Class Members’ PII
                                                                    2    confidential and to protect such PII from unauthorized access.
                                                                    3          42.      Representative Plaintiff and Class Members were required to provide
                                                                    4    their PII and financial information to Defendant with the reasonable expectation and
                                                                    5    mutual understanding that Defendant would comply with its obligations to keep such
                                                                    6    information confidential and secure from unauthorized access.
                                                                    7          43.      Despite this, Representative Plaintiff and the Class Members remain,
                                                                    8    even today, in the dark regarding what particular data was stolen, the particular
                                                                    9    malware used, and what steps, if any, Defendant intends to take, to secure to secure
                                                                    10   their PII and financial information going forward. Representative Plaintiff and Class
                                                                    11   Members are left to speculate as to the full impact of the Data Breach and how
                                                                    12   exactly Defendant intends to enhance its information security systems and




COLE & VAN NOTE
                                                                    13   monitoring capabilities so as to prevent further breaches.
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14         44.      Representative Plaintiff’s and Class Members’ PII and financial
                                         OAKLAND, CA 94607
                                                                    15   information may end up for sale on the dark web, or simply fall into the hands of
                                          TEL: (510) 891-9800       16   companies that will use the detailed PII and financial information for targeted
                                                                    17   marketing without the approval of Representative Plaintiff and/or Class Members.
                                                                    18   Either way, unauthorized individuals can now easily access the PII and/or financial
                                                                    19   information of Representative Plaintiff and Class Members.
                                                                    20
                                                                    21   Defendant Collected/Stored Class Members’ PII and Financial Information
                                                                    22         45.      Defendant acquired, collected, and stored and assured reasonable
                                                                    23   security over Representative Plaintiff’s and Class Members’ PII and financial
                                                                    24   information.
                                                                    25         46.      Defendant required that Representative Plaintiff and Class Members
                                                                    26   provide it with, inter alia, their full names, addresses, Social Security numbers, and
                                                                    27   financial account information.
                                                                    28

                                                                                                                  -12-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.48 Page 13 of 33




                                                                    1          47.    By obtaining, collecting, and storing Representative Plaintiff’s and
                                                                    2    Class Members’ PII and financial information, Defendant assumed legal and
                                                                    3    equitable duties and knew, or should have known, that it was thereafter responsible
                                                                    4    for protecting Representative Plaintiff’s and Class Members’ PII and financial
                                                                    5    information from unauthorized disclosure.
                                                                    6          48.    Representative Plaintiff and Class Members have taken reasonable
                                                                    7    steps to maintain the confidentiality of their PII and financial information.
                                                                    8    Representative Plaintiff and Class Members relied on Defendant to keep their PII
                                                                    9    and financial information confidential and securely maintained, to use this
                                                                    10   information for business purposes only, and to make only authorized disclosures of
                                                                    11   this information.
                                                                    12         49.    Defendant could have prevented the Data Breach by properly securing




COLE & VAN NOTE
                                                                    13   and encrypting and/or more securely encrypting its servers generally, as well as
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   Representative Plaintiff’s and Class Members’ PII and financial information.
                                         OAKLAND, CA 94607
                                                                    15         50.    Defendant’s negligence in safeguarding Representative Plaintiff’s and
                                          TEL: (510) 891-9800       16   Class Members’ PII and financial information is exacerbated by repeated warnings
                                                                    17   and alerts directed to protecting and securing sensitive data, as evidenced by the
                                                                    18   trending data breach attacks in recent years.
                                                                    19         51.    Due to the high-profile nature of many recent data breaches, Defendant
                                                                    20   was and/or certainly should have been on notice and aware of such attacks occurring
                                                                    21   and, therefore, should have assumed and adequately performed the duty of preparing
                                                                    22   for such an imminent attack.
                                                                    23         52.    Yet, despite the prevalence of public announcements of data breach and
                                                                    24   data security compromises, Defendant failed to take appropriate steps to protect
                                                                    25   Representative Plaintiff’s and Class Members’ PII and financial information from
                                                                    26   being compromised.
                                                                    27
                                                                    28

                                                                                                                  -13-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.49 Page 14 of 33




                                                                    1    Defendant Had an Obligation to Protect the Stolen Information
                                                                    2           53.   Defendant’s failure to adequately secure Representative Plaintiff’s and
                                                                    3    Class Members’ sensitive data breaches duties it owed Representative Plaintiff and
                                                                    4    Class Members under statutory and common law. Representative Plaintiff and Class
                                                                    5    Members surrendered their highly sensitive personal data to Defendant under the
                                                                    6    implied condition that Defendant would keep it private and secure. Accordingly,
                                                                    7    Defendant also had an implied duty to safeguard their data, independent of any
                                                                    8    statute.
                                                                    9           54.   In addition to its obligations under federal and state laws, Defendant
                                                                    10   owed a duty to Representative Plaintiff and Class Members to exercise reasonable
                                                                    11   care in obtaining, retaining, securing, safeguarding, deleting, and protecting the PII
                                                                    12   and financial information in Defendant’s possession from being compromised, lost,




COLE & VAN NOTE
                                                                    13   stolen, accessed, and misused by unauthorized persons. Defendant owed a duty to
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   Representative Plaintiff and Class Members to provide reasonable security,
                                         OAKLAND, CA 94607
                                                                    15   including consistency with industry standards and requirements, and to ensure that
                                          TEL: (510) 891-9800       16   its computer systems, networks, and protocols adequately protected the PII and
                                                                    17   financial information of Representative Plaintiff and Class Members.
                                                                    18          55.   Defendant owed a duty to Representative Plaintiff and Class Members
                                                                    19   to design, maintain, and test its computer systems, servers, and networks to ensure
                                                                    20   that the PII and financial information in its possession was adequately secured and
                                                                    21   protected.
                                                                    22          56.   Defendant owed a duty to Representative Plaintiff and Class Members
                                                                    23   to create and implement reasonable data security practices and procedures to protect
                                                                    24   the PII and financial information in its possession, including not sharing information
                                                                    25   with other entities who maintained sub-standard data security systems.
                                                                    26          57.   Defendant owed a duty to Representative Plaintiff and Class Members
                                                                    27   to implement processes that would detect a breach on its data security systems in a
                                                                    28   timely manner.

                                                                                                                  -14-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.50 Page 15 of 33




                                                                    1          58.    Defendant owed a duty to Representative Plaintiff and Class Members
                                                                    2    to act upon data security warnings and alerts in a timely fashion.
                                                                    3          59.    Defendant owed a duty to Representative Plaintiff and Class Members
                                                                    4    to disclose if its computer systems and data security practices were inadequate to
                                                                    5    safeguard individuals’ PII and/or financial information from theft because such an
                                                                    6    inadequacy would be a material fact in the decision to entrust this PII and/or financial
                                                                    7    information to Defendant.
                                                                    8          60.    Defendant owed a duty of care to Representative Plaintiff and Class
                                                                    9    Members because they were foreseeable and probable victims of any inadequate data
                                                                    10   security practices.
                                                                    11         61.    Defendant owed a duty to Representative Plaintiff and Class Members
                                                                    12   to encrypt and/or more reliably encrypt Representative Plaintiff’s and Class




COLE & VAN NOTE
                                                                    13   Members’ PII and financial information and monitor user behavior and activity in
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   order to identify possible threats.
                                         OAKLAND, CA 94607
                                                                    15
                                          TEL: (510) 891-9800       16   Value of the Relevant Sensitive Information
                                                                    17         62.    The ramifications of Defendant’s failure to keep secure Representative
                                                                    18   Plaintiff’s and Class Members’ PII and financial information are long lasting and
                                                                    19   severe. Once PII and financial information is stolen, fraudulent use of that
                                                                    20   information and damage to victims may continue for years. Indeed, the PII and/or
                                                                    21   financial information of Representative Plaintiff and Class Members was taken by
                                                                    22   hackers to engage in identity theft or to sell it to other criminals who will purchase
                                                                    23   the PII and/or financial information for that purpose. The fraudulent activity
                                                                    24   resulting from the Data Breach may not come to light for years.
                                                                    25         63.    These criminal activities have and will result in devastating financial
                                                                    26   and personal losses to Representative Plaintiff and Class Members. For example, it
                                                                    27   is believed that certain PII compromised in the 2017 Experian data breach was being
                                                                    28   used, three years later, by identity thieves to apply for COVID-19-related benefits in

                                                                                                                   -15-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.51 Page 16 of 33




                                                                    1    the state of Oklahoma. Such fraud will be an omnipresent threat for Representative
                                                                    2    Plaintiff and Class Members for the rest of their lives. They will need to remain
                                                                    3    constantly vigilant.
                                                                    4          64.    The FTC defines identity theft as “a fraud committed or attempted using
                                                                    5    the identifying information of another person without authority.” The FTC describes
                                                                    6    “identifying information” as “any name or number that may be used, alone or in
                                                                    7    conjunction with any other information, to identify a specific person,” including,
                                                                    8    among other things, “[n]ame, Social Security number, date of birth, official State or
                                                                    9    government issued driver’s license or identification number, alien registration
                                                                    10   number, government passport number, employer or taxpayer identification number.”
                                                                    11         65.    Identity thieves can use PII and financial information, such as that of
                                                                    12   Representative Plaintiff and Class Members which Defendant failed to keep secure,




COLE & VAN NOTE
                                                                    13   to perpetrate a variety of crimes that harm victims. For instance, identity thieves may
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   commit various types of government fraud such as immigration fraud, obtaining a
                                         OAKLAND, CA 94607
                                                                    15   driver’s license or identification card in the victim’s name but with another’s picture,
                                          TEL: (510) 891-9800       16   using the victim’s information to obtain government benefits, or filing a fraudulent
                                                                    17   tax return using the victim’s information to obtain a fraudulent refund.
                                                                    18         66.    There may be a time lag between when harm occurs versus when it is
                                                                    19   discovered, and also between when PII and/or financial information is stolen and
                                                                    20   when it is used. According to the U.S. Government Accountability Office (“GAO”),
                                                                    21   which conducted a study regarding data breaches:
                                                                    22         [L]aw enforcement officials told us that in some cases, stolen data may
                                                                               be held for up to a year or more before being used to commit identity
                                                                    23         theft. Further, once stolen data have been sold or posted on the Web,
                                                                               fraudulent use of that information may continue for years. As a result,
                                                                    24         studies that attempt to measure the harm resulting from data breaches
                                                                               cannot necessarily rule out all future harm.3
                                                                    25
                                                                    26
                                                                    27
                                                                         3
                                                                    28      Report to Congressional Requesters, GAO, at 29 (June 2007), available at:
                                                                         http://www.gao.gov/new.items/d07737.pdf (last accessed November 4, 2021).
                                                                                                                   -16-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.52 Page 17 of 33




                                                                    1          67.    If cybercriminals manage to access to personally sensitive data—as
                                                                    2    they did here—there is no limit to the amount of fraud to which Defendant may have
                                                                    3    exposed Representative Plaintiff and Class Members.
                                                                    4          68.    Data breaches are preventable.4 As Lucy Thompson wrote in the DATA
                                                                    5    BREACH AND ENCRYPTION HANDBOOK, “[i]n almost all cases, the data breaches that
                                                                    6    occurred could have been prevented by proper planning and the correct design and
                                                                    7    implementation of appropriate security solutions.”5 She added that “[o]rganizations
                                                                    8    that collect, use, store, and share sensitive personal data must accept responsibility
                                                                    9    for protecting the information and ensuring that it is not compromised . . . .”6
                                                                    10         69.    “Most of the reported data breaches are a result of lax security and the
                                                                    11   failure to create or enforce appropriate security policies, rules, and procedures …
                                                                    12   Appropriate information security controls, including encryption, must be




COLE & VAN NOTE
                                                                    13   implemented and enforced in a rigorous and disciplined manner so that a data breach
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   never occurs.”7
                                         OAKLAND, CA 94607
                                                                    15         70.    Here, Defendant knew of the importance of safeguarding PII and
                                          TEL: (510) 891-9800       16   financial information and of the foreseeable consequences that would occur if
                                                                    17   Representative Plaintiff’s and Class Members’ PII and financial information was
                                                                    18   stolen, including the significant costs that would be placed on Representative
                                                                    19   Plaintiff and Class Members as a result of a breach of this magnitude. Defendant had
                                                                    20   the resources to deploy robust cybersecurity protocols. It knew, or should have
                                                                    21   known, that the development and use of such protocols were necessary to fulfill its
                                                                    22   statutory and common law duties to Representative Plaintiff and Class Members.
                                                                    23   Defendant’s failure to do so is, therefore, intentional, willful, reckless, and/or grossly
                                                                    24   negligent.
                                                                    25
                                                                         4
                                                                    26    Lucy L. Thompson, “Despite the Alarming Trends, Data Breaches Are
                                                                       Preventable,” in DATA BREACH AND ENCRYPTION HANDBOOK (Lucy Thompson,
                                                                    27 ed., 2012).
                                                                       5
                                                                          Id. at 17.
                                                                    28 6 Id. at 28.
                                                                       7
                                                                          Id.
                                                                                                                    -17-
                                                                                                                                  COMPLAINT FOR DAMAGES,
                                                                                                                           INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.53 Page 18 of 33




                                                                    1          71.    Defendant disregarded the rights of Representative Plaintiff and Class
                                                                    2    Members by, inter alia, (i) intentionally, willfully, recklessly, or negligently failing
                                                                    3    to take adequate and reasonable measures to ensure that its network servers were
                                                                    4    protected against unauthorized intrusions; (ii) failing to disclose that it did not have
                                                                    5    adequately robust security protocols and training practices in place to adequately
                                                                    6    safeguard Representative Plaintiff’s and Class Members’ PII and/or financial
                                                                    7    information; (iii) failing to take standard and reasonably available steps to prevent
                                                                    8    the Data Breach; (iv) concealing the existence and extent of the Data Breach for an
                                                                    9    unreasonable duration of time; and (v) failing to provide Representative Plaintiff and
                                                                    10   Class Members prompt and accurate notice of the Data Breach.
                                                                    11
                                                                    12                           FIRST CLAIM FOR RELIEF
                                                                                                            Negligence



COLE & VAN NOTE
                                                                    13
                                     555 12TH STREET, SUITE 1725
                                                                                               (On behalf of the Nationwide Class)


                  ATTORNEYS AT LAW
                                                                    14         72.    Each and every allegation of the preceding paragraphs is incorporated
                                         OAKLAND, CA 94607
                                                                    15   in this cause of action with the same force and effect as though fully set forth herein.
                                          TEL: (510) 891-9800       16         73.    At all times herein relevant, Defendant owed Representative Plaintiff
                                                                    17   and Class Members a duty of care, inter alia, to act with reasonable care to secure
                                                                    18   and safeguard their PII and financial information and to use commercially
                                                                    19   reasonable methods to do so. Defendant took on this obligation upon accepting and
                                                                    20   storing the PII and financial information of Representative Plaintiff and Class
                                                                    21   Members in its computer systems and on its networks.
                                                                    22         74.    Among these duties, Defendant was expected:
                                                                    23                a.     to exercise reasonable care in obtaining, retaining, securing,
                                                                                             safeguarding, deleting and protecting the PII and financial
                                                                    24                       information in its possession;
                                                                    25                b.     to protect Representative Plaintiff’s and Class Members’ PII and
                                                                                             financial information using reasonable and adequate security
                                                                    26                       procedures and systems that were/are compliant with industry-
                                                                                             standard practices;
                                                                    27
                                                                                      c.     to implement processes to quickly detect the Data Breach and to
                                                                    28                       timely act on warnings about data breaches; and

                                                                                                                   -18-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.54 Page 19 of 33




                                                                    1
                                                                                      d.    to promptly notify Representative Plaintiff and Class Members
                                                                    2                       of any data breach, security incident, or intrusion that affected or
                                                                                            may have affected their PII and financial information.
                                                                    3
                                                                    4
                                                                               75.    Defendant knew that the PII and financial information was private and
                                                                    5
                                                                         confidential and should be protected as private and confidential. Representative
                                                                    6
                                                                         Plaintiffs and Class Members were foreseeable and probable victims of any
                                                                    7
                                                                         inadequate security practices; thus, Defendant owed a duty of care to not subject
                                                                    8
                                                                         them to an unreasonable risk of harm.
                                                                    9
                                                                               76.    Defendant knew, or should have known, of the risks inherent in
                                                                    10
                                                                         collecting and storing PII and financial information, the vulnerabilities of its data
                                                                    11
                                                                         security systems, and the importance of adequate security. Defendant knew about
                                                                    12
                                                                         numerous, well-publicized data breaches.




COLE & VAN NOTE
                                                                    13
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                               77.    Defendant knew, or should have known, that its data systems and
                                                                    14
                                         OAKLAND, CA 94607
                                                                         networks did not adequately safeguard Representative Plaintiff’s and Class
                                                                    15
                                                                         Members’ PII and financial information.
                                          TEL: (510) 891-9800       16
                                                                               78.    Only Defendant was in the position to ensure that its systems and
                                                                    17
                                                                         protocols were sufficient to protect the PII and financial information that
                                                                    18
                                                                         Representative Plaintiff and Class Members had entrusted to it.
                                                                    19
                                                                               79.    Defendant breached its duties to Representative Plaintiff and Class
                                                                    20
                                                                         Members by failing to provide fair, reasonable, or adequate computer systems and
                                                                    21
                                                                         data security practices to safeguard the PII and financial information of
                                                                    22
                                                                         Representative Plaintiff and Class Members.
                                                                    23
                                                                               80.    Because Defendant knew that a breach of its systems could damage
                                                                    24
                                                                         millions of individuals, including Representative Plaintiff and Class Members,
                                                                    25
                                                                         Defendant had a duty to adequately protect those data systems and the PII and
                                                                    26
                                                                         financial information contained thereon.
                                                                    27
                                                                               81.    Representative Plaintiff’s and Class Members’ willingness to entrust
                                                                    28
                                                                         Defendant with their PII and financial information was predicated on the
                                                                                                                 -19-
                                                                                                                               COMPLAINT FOR DAMAGES,
                                                                                                                        INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.55 Page 20 of 33




                                                                    1    understanding that Defendant would take adequate security precautions. Moreover,
                                                                    2    only Defendant had the ability to protect its systems and the PII and financial
                                                                    3    information they stored on them from attack. Thus, Defendant had a special
                                                                    4    relationship with Representative Plaintiff and Class Members.
                                                                    5          82.   Defendant also had independent duties under state and federal laws that
                                                                    6    required it to reasonably safeguard Representative Plaintiff’s and Class Members’
                                                                    7    PII and financial information and promptly notify them about the Data Breach.
                                                                    8    These “independent duties” are untethered to any contract between Defendant and
                                                                    9    Representative Plaintiff and/or the remaining Class Members.
                                                                    10         83.   Defendant breached its general duty of care to Representative Plaintiff
                                                                    11   and Class Members in, but not necessarily limited to, the following ways:
                                                                    12
                                                                                     a.     by failing to provide fair, reasonable, or adequate computer



COLE & VAN NOTE
                                                                    13
                                     555 12TH STREET, SUITE 1725
                                                                                            systems and data security practices to safeguard the PII and


                  ATTORNEYS AT LAW
                                                                                            financial information of Representative Plaintiff and Class
                                                                    14                      Members;
                                         OAKLAND, CA 94607
                                                                    15               b.     by failing to timely and accurately disclose that Representative
                                          TEL: (510) 891-9800
                                                                                            Plaintiff’s and Class Members’ PII and financial information had
                                                                    16                      been improperly acquired or accessed;
                                                                    17               c.     by failing to adequately protect and safeguard the PII and
                                                                                            financial information by knowingly disregarding standard
                                                                    18                      information security principles, despite obvious risks, and by
                                                                                            allowing unmonitored and unrestricted access to unsecured PII
                                                                    19                      and financial information;
                                                                    20               d.     by failing to provide adequate supervision and oversight of the
                                                                                            PII and financial information with which they were and are
                                                                    21                      entrusted, in spite of the known risk and foreseeable likelihood
                                                                                            of breach and misuse, which permitted an unknown third-party
                                                                    22                      to gather PII and financial information of Representative Plaintiff
                                                                                            and Class Members, misuse the PII, and intentionally disclose it
                                                                    23                      to others without consent.
                                                                    24               e.     by failing to adequately train its employees to not store PII and
                                                                                            financial information longer than absolutely necessary;
                                                                    25
                                                                                     f.     by failing to consistently enforce security policies aimed at
                                                                    26                      protecting Representative Plaintiff’s and the Class Members’ PII
                                                                                            and financial information;
                                                                    27
                                                                                     g.     by failing to implement processes to quickly detect data
                                                                    28                      breaches, security incidents, or intrusions; and

                                                                                                                 -20-
                                                                                                                               COMPLAINT FOR DAMAGES,
                                                                                                                        INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.56 Page 21 of 33




                                                                    1
                                                                                      h.    by failing to encrypt Representative Plaintiff’s and Class
                                                                    2                       Members’ PII and financial information and monitor user
                                                                                            behavior and activity in order to identify possible threats.
                                                                    3
                                                                    4          84.    Defendant’s willful failure to abide by these duties was wrongful,
                                                                    5    reckless, and grossly negligent in light of the foreseeable risks and known threats.
                                                                    6          85.    As a proximate and foreseeable result of Defendant’s grossly negligent
                                                                    7    conduct, Representative Plaintiff and Class Members have suffered damages and are
                                                                    8    at imminent risk of additional harms and damages (as alleged above).
                                                                    9          86.    The law further imposes an affirmative duty on Defendant to timely
                                                                    10   disclose the unauthorized access and theft of the PII and financial information to
                                                                    11   Representative Plaintiff and Class Members so that they could and/or still can take
                                                                    12   appropriate measures to mitigate damages, protect against adverse consequences,
                                                                         and thwart future misuse of their PII and financial information.



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                                                                    13
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14         87.    Defendant breached its duty to notify Representative Plaintiff and Class
                                         OAKLAND, CA 94607
                                                                    15   Members of the unauthorized access by waiting over a year after the Data Breach
                                          TEL: (510) 891-9800       16   began and months after it was discovered to notify Representative Plaintiff and Class
                                                                    17   Members and then by failing and continuing to fail to provide Representative
                                                                    18   Plaintiff and Class Members sufficient information regarding the breach. To date,
                                                                    19   Defendant has not provided sufficient information to Representative Plaintiff and
                                                                    20   Class Members regarding the extent of the unauthorized access and continues to
                                                                    21   breach its disclosure obligations to Representative Plaintiff and Class Members.
                                                                    22         88.    Further, through its failure to provide timely and clear notification of
                                                                    23   the Data Breach to Representative Plaintiff and Class Members, Defendant
                                                                    24   prevented Representative Plaintiff and Class Members from taking meaningful,
                                                                    25   proactive steps to secure their PII and financial information.
                                                                    26         89.    There is a close causal connection between Defendant’s failure to
                                                                    27   implement security measures to protect the PII and financial information of
                                                                    28   Representative Plaintiff and Class Members and the harm suffered, or risk of

                                                                                                                  -21-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.57 Page 22 of 33




                                                                    1    imminent harm suffered by Representative Plaintiff and Class Members.
                                                                    2    Representative Plaintiff’s and Class Members’ PII and financial information was
                                                                    3    accessed as the proximate result of Defendant’s failure to exercise reasonable care
                                                                    4    in safeguarding such PII and financial information by adopting, implementing, and
                                                                    5    maintaining appropriate security measures.
                                                                    6          90.    Defendant’s wrongful actions, inactions, and omissions constituted
                                                                    7    (and continues to constitute) common law negligence.
                                                                    8          91.    The damages Representative Plaintiff and Class Members have
                                                                    9    suffered (as alleged above) and will suffer were and are the direct and proximate
                                                                    10   result of Defendant’s grossly negligent conduct.
                                                                    11         92.    Additionally, 15 U.S.C. §45 (FTC Act, Section 5) prohibits “unfair . . .
                                                                    12   practices in or affecting commerce,” including, as interpreted and enforced by the




COLE & VAN NOTE
                                                                    13   FTC, the unfair act or practice by businesses, such as Defendant, of failing to use
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   reasonable measures to protect PII and financial information. The FTC publications
                                         OAKLAND, CA 94607
                                                                    15   and orders described above also form part of the basis of Defendant’s duty in this
                                          TEL: (510) 891-9800       16   regard.
                                                                    17         93.    Defendant violated 15 U.S.C. §45 by failing to use reasonable measures
                                                                    18   to protect PII and financial information and not complying with applicable industry
                                                                    19   standards, as described in detail herein. Defendant’s conduct was particularly
                                                                    20   unreasonable given the nature and amount of PII and financial information it
                                                                    21   obtained and stored and the foreseeable consequences of the immense damages that
                                                                    22   would result to Representative Plaintiff and Class Members.
                                                                    23         94.    As a direct and proximate result of Defendant's negligence and
                                                                    24   negligence per se, Representative Plaintiff and Class Members have suffered and
                                                                    25   will suffer injury, including, but not limited to: (i) actual identity theft; (ii) the loss
                                                                    26   of the opportunity of how their PII and financial information is used; (iii) the
                                                                    27   compromise, publication and/or theft of their PII and financial information; (iv) out-
                                                                    28   of-pocket expenses associated with the prevention, detection and recovery from

                                                                                                                    -22-
                                                                                                                                  COMPLAINT FOR DAMAGES,
                                                                                                                           INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.58 Page 23 of 33




                                                                    1    identity theft, tax fraud and/or unauthorized use of their PII and financial
                                                                    2    information; (v) lost opportunity costs associated with effort expended and the loss
                                                                    3    of productivity; (vi) addressing and attempting to mitigate actual and future
                                                                    4    consequences, including, but not limited to, efforts spent researching ways to
                                                                    5    prevent, detect, contest and/or recover from embarrassment and identity theft; (vii)
                                                                    6    the continued risk to their PII and financial information, which may remain in
                                                                    7    Defendant's possession and be the subject of further unauthorized disclosures so long
                                                                    8    as Defendant fails to undertake adequate measures to protect Representative
                                                                    9    Plaintiff's and Class Members' PII and financial information; and (viii) future costs
                                                                    10   (e.g., time, effort, money) that may/will be expended to prevent, detect, contest
                                                                    11   and/or repair the harm(s) attendant to the compromise of Representative Plaintiff's
                                                                    12   and Class Members' PII and financial information.




COLE & VAN NOTE
                                                                    13         95.     As a direct and proximate result of Defendant’s negligence and
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   negligence per se, Representative Plaintiff and Class Members have suffered and
                                         OAKLAND, CA 94607
                                                                    15   will continue to suffer other forms of injury and/or harm, including, but not limited
                                          TEL: (510) 891-9800       16   to, anxiety, emotional distress, loss of privacy, and other economic and non-
                                                                    17   economic losses.
                                                                    18         96.     Additionally, as a direct and proximate result of Defendant’s
                                                                    19   negligence and negligence per se, Representative Plaintiff and Class Members have
                                                                    20   suffered and will suffer the continued risks of exposure of their PII and financial
                                                                    21   information, which remain in Defendant’s possession and are subject to further
                                                                    22   unauthorized disclosures so long as Defendant fails to undertake appropriate and
                                                                    23   adequate measures to protect the PII and financial information in its continued
                                                                    24   possession.
                                                                    25
                                                                    26
                                                                    27
                                                                    28

                                                                                                                 -23-
                                                                                                                               COMPLAINT FOR DAMAGES,
                                                                                                                        INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.59 Page 24 of 33




                                                                    1                           SECOND CLAIM FOR RELIEF
                                                                                                   Breach of Implied Contract
                                                                    2                          (On behalf of the Nationwide Class)
                                                                    3          97.    Each and every allegation of the preceding paragraphs is incorporated
                                                                    4    in this cause of action with the same force and effect as though fully set forth herein.
                                                                    5          98.    Through its course of conduct, Defendant, Representative Plaintiff, and
                                                                    6    Class Members entered into implied contracts for Defendant to implement data
                                                                    7    security adequate to safeguard and protect the privacy of Representative Plaintiff’s
                                                                    8    and Class Members’ PII and financial information.
                                                                    9          99.    Defendant required Representative Plaintiff and Class Members to
                                                                    10   provide and entrust their PII and financial information, including full names,
                                                                    11   addresses, employer assigned identification numbers, Social Security numbers, and
                                                                    12   financial account information.
                                                                               100. Defendant solicited and invited Representative Plaintiff and Class



COLE & VAN NOTE
                                                                    13
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                  ATTORNEYS AT LAW
                                                                    14   Members to provide their PII and financial information as part of Defendant’s
                                         OAKLAND, CA 94607
                                                                    15   regular business practices. Representative Plaintiff and Class Members accepted
                                          TEL: (510) 891-9800       16   Defendant’s offers and provided their PII and financial information to Defendant.
                                                                    17         101. As a condition of receiving services from Defendant, Representative
                                                                    18   Plaintiff and Class Members provided and entrusted their PII and financial
                                                                    19   information to Defendant. In so doing, Representative Plaintiff and Class Members
                                                                    20   entered into implied contracts with Defendant by which Defendant agreed to
                                                                    21   safeguard and protect such non-public information, to keep such information secure
                                                                    22   and confidential, and to timely and accurately notify Representative Plaintiff and
                                                                    23   Class Members if their data had been breached and compromised or stolen.
                                                                    24         102. Defendant’s privacy policy provides that, except as outlined in its
                                                                    25   policies, it “will not disclose, sell, or rent any of your information to any third parties
                                                                    26   without your consent.” It further provides that it takes “certain physical,
                                                                    27   administrative, and technical steps to protect personal information against
                                                                    28

                                                                                                                    -24-
                                                                                                                                  COMPLAINT FOR DAMAGES,
                                                                                                                           INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.60 Page 25 of 33




                                                                    1    unauthorized access, use, or disclosure.”8 Based on these representations, Defendant
                                                                    2    had a duty to take all reasonable steps to protect Representative Plaintiff’s and Class
                                                                    3    Members’ data.
                                                                    4          103. A meeting of the minds occurred when Representative Plaintiff and
                                                                    5    Class Members agreed to, and did, provide their PII and financial information to
                                                                    6    Defendant, in exchange for, amongst other things, the protection of their PII and
                                                                    7    financial information.
                                                                    8          104. Representative Plaintiff and Class Members fully performed their
                                                                    9    obligations under the implied contracts with Defendant.
                                                                    10         105. Defendant breached the implied contracts it made with Representative
                                                                    11   Plaintiff and Class Members by failing to safeguard and protect their PII and
                                                                    12   financial information and by failing to provide timely and accurate notice to them




COLE & VAN NOTE
                                                                    13   that their PII and financial information was compromised as a result of the Data
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   Breach.
                                         OAKLAND, CA 94607
                                                                    15         106. As a direct and proximate result of Defendant’s above-described breach
                                          TEL: (510) 891-9800       16   of implied contract, Representative Plaintiff and Class Members have suffered (and
                                                                    17   will continue to suffer) (a) ongoing, imminent, and impending threat of identity theft
                                                                    18   crimes, fraud, and abuse, resulting in monetary loss and economic harm; (b) actual
                                                                    19   identity theft crimes, fraud, and abuse, resulting in monetary loss and economic
                                                                    20   harm; (c) loss of the confidentiality of the stolen confidential data; (d) the illegal sale
                                                                    21   of the compromised data on the dark web; (e) lost work time; and (f) other economic
                                                                    22   and non-economic harm.
                                                                    23
                                                                    24   //
                                                                    25   //
                                                                    26   //
                                                                    27
                                                                         8
                                                                          https://www.dialamerica.com/corporate/privacy-
                                                                    28   policy/#:~:text=DialAmerica%20may%20use%20the%20information,content%2C
                                                                         %20products%2C%20and%20services. (last accessed May 11, 2022).
                                                                                                                    -25-
                                                                                                                                  COMPLAINT FOR DAMAGES,
                                                                                                                           INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.61 Page 26 of 33




                                                                    1                           THIRD CLAIM FOR RELIEF
                                                                               Breach of the Implied Covenant of Good Faith and Fair Dealing
                                                                    2                         (On behalf of the Nationwide Class)
                                                                    3          107. Each and every allegation of the preceding paragraphs is incorporated
                                                                    4    in this cause of action with the same force and effect as though fully set forth herein.
                                                                    5          108. Every contract has an implied covenant of good faith and fair dealing.
                                                                    6    This implied covenant is an independent duty and may be breached even when
                                                                    7    there is no breach of a contract’s actual and/or express terms.
                                                                    8          109. Representative Plaintiff and Class Members have complied with and
                                                                    9    performed all conditions of their contracts with Defendant.
                                                                    10         110. Defendant breached the implied covenant of good faith and fair
                                                                    11   dealing by failing to maintain adequate computer systems and data security practices
                                                                    12   to safeguard PII and financial information, failing to timely and accurately disclose
                                                                         the Data Breach to Representative Plaintiff and Class Members, and continued



COLE & VAN NOTE
                                                                    13
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                  ATTORNEYS AT LAW
                                                                    14   acceptance of PII and financial information and storage of other personal
                                         OAKLAND, CA 94607
                                                                    15   information after Defendant knew, or should have known, of the security
                                          TEL: (510) 891-9800       16   vulnerabilities of the systems that were exploited in the Data Breach.
                                                                    17         111. Defendant acted in bad faith and/or with malicious motive in denying
                                                                    18   Representative Plaintiff and Class Members the full benefit of their bargains as
                                                                    19   originally intended by the parties, thereby causing them injury in an amount to be
                                                                    20   determined at trial.
                                                                    21
                                                                    22
                                                                                              FOURTH CLAIM FOR RELIEF
                                                                    23                            Unfair Business Practices
                                                                                           (Cal. Bus. & Prof. Code, §17200, et seq.)
                                                                    24                      (On behalf of the California Subclass)
                                                                    25         112. Each and every allegation of the preceding paragraphs is incorporated
                                                                    26   in this cause of action with the same force and effect as though fully set forth herein.
                                                                    27
                                                                    28

                                                                                                                   -26-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.62 Page 27 of 33




                                                                    1          113. Representative Plaintiff and California Subclass Members further bring
                                                                    2    this cause of action, seeking equitable and statutory relief to stop the misconduct of
                                                                    3    Defendant, as complained of herein.
                                                                    4          114. Defendant has engaged in unfair competition within the meaning of
                                                                    5    California Business & Professions Code §§17200, et seq., because Defendant’s
                                                                    6    conduct is unlawful, unfair and/or fraudulent, as herein alleged.
                                                                    7          115. Representative Plaintiff, the California Subclass Members, and
                                                                    8    Defendant are each a “person” or “persons” within the meaning of § 17201 of the
                                                                    9    California Unfair Competition Law (“UCL”).
                                                                    10         116. The knowing conduct of Defendant, as alleged herein, constitutes an
                                                                    11   unlawful and/or fraudulent business practice, as set forth in California Business &
                                                                    12   Professions Code §§17200-17208. Specifically, Defendant conducted business




COLE & VAN NOTE
                                                                    13   activities while failing to comply with the legal mandates cited herein. Such
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   violations include, but are not necessarily limited to:
                                         OAKLAND, CA 94607
                                                                    15                a.     failure to maintain adequate computer systems and data security
                                          TEL: (510) 891-9800
                                                                                             practices to safeguard PII and financial information;
                                                                    16
                                                                                      b.     failure to disclose that its computer systems and data security
                                                                    17                       practices were inadequate to safeguard PII and financial
                                                                                             information from theft;
                                                                    18
                                                                                      c.     failure to timely and accurately disclose the Data Breach to
                                                                    19                       Representative Plaintiff and California Subclass Members;
                                                                    20                d.     continued acceptance of PII and financial information and
                                                                                             storage of other personal information after Defendant knew or
                                                                    21                       should have known of the security vulnerabilities of the systems
                                                                                             that were exploited in the Data Breach; and
                                                                    22
                                                                                      e.     continued acceptance of PII and financial information and
                                                                    23                       storage of other personal information after Defendant knew or
                                                                                             should have known of the Data Breach and before they allegedly
                                                                    24                       remediated the Data Breach.
                                                                    25
                                                                    26         117. Defendant knew or should have known that its computer systems and
                                                                    27   data security practices were inadequate to safeguard the PII and financial
                                                                    28   information of Representative Plaintiff and California Subclass Members, deter

                                                                                                                  -27-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.63 Page 28 of 33




                                                                    1    hackers, and detect a breach within a reasonable time and that the risk of a data
                                                                    2    breach was highly likely.
                                                                    3          118. In engaging in these unlawful business practices, Defendant has
                                                                    4    enjoyed an advantage over its competition and a resultant disadvantage to the public
                                                                    5    and California Subclass Members.
                                                                    6          119. Defendant’s knowing failure to adopt policies in accordance with
                                                                    7    and/or adhere to these laws, all of which are binding upon and burdensome to
                                                                    8    Defendant’s competitors, engenders an unfair competitive advantage for Defendant,
                                                                    9    thereby constituting an unfair business practice, as set forth in California Business
                                                                    10   & Professions Code §§17200-17208.
                                                                    11         120. Defendant has clearly established a policy of accepting a certain
                                                                    12   amount of collateral damage, as represented by the damages to Representative




COLE & VAN NOTE
                                                                    13   Plaintiff and California Subclass Members herein alleged, as incidental to its
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   business operations, rather than accept the alternative costs of full compliance with
                                         OAKLAND, CA 94607
                                                                    15   fair, lawful and honest business practices ordinarily borne by responsible
                                          TEL: (510) 891-9800       16   competitors of Defendant and as set forth in legislation and the judicial record.
                                                                    17         121. The UCL is, by its express terms, a cumulative remedy, such that
                                                                    18   remedies under its provisions can be awarded in addition to those provided under
                                                                    19   separate statutory schemes and/or common law remedies, such as those alleged in
                                                                    20   the other causes of action of this Complaint. See Cal. Bus. & Prof. Code § 17205.
                                                                    21         122. Representative Plaintiff and California Subclass Members request that
                                                                    22   this Court enter such orders or judgments as may be necessary to enjoin Defendant
                                                                    23   from continuing its unfair, unlawful, and/or deceptive practices and to restore to
                                                                    24   Representative Plaintiff and California Subclass Members any money Defendant
                                                                    25   acquired by unfair competition, including restitution and/or equitable relief,
                                                                    26   including disgorgement or ill-gotten gains, refunds of moneys, interest, reasonable
                                                                    27   attorneys’ fees, and the costs of prosecuting this class action, as well as any and all
                                                                    28   other relief that may be available at law or equity.

                                                                                                                   -28-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.64 Page 29 of 33




                                                                    1          123. Absent injunctive relief, Representative Plaintiff and Class Members
                                                                    2    are under continued threat of future harm. Defendant maintains their data and has
                                                                    3    not identified any specific steps it has taken to resolve the data security issues that
                                                                    4    allowed the data breach to occur. Accordingly, Representative Plaintiff and Class
                                                                    5    Members remain in the dark about what steps are being taken to secure their data,
                                                                    6    let alone that Defendant is implementing all practices and processes to secure their
                                                                    7    data. The only way they can be confident in the future security of this data is for this
                                                                    8    Court to order Defendant to take the specific steps necessary to install a robust
                                                                    9    cybersecurity protocol sufficient to adequately secure their data.
                                                                    10
                                                                    11                         FIFTH CLAIM FOR RELIEF
                                                                                                      Unjust Enrichment
                                                                    12                       (On behalf of the Nationwide Class)




COLE & VAN NOTE
                                                                    13         124. Each and every allegation of the preceding paragraphs is incorporated
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   in this cause of action with the same force and effect as though fully set forth herein.
                                         OAKLAND, CA 94607
                                                                    15         125. By its wrongful acts and omissions described herein, Defendant has
                                          TEL: (510) 891-9800       16   obtained a benefit by unduly taking advantage of Representative Plaintiff and Class
                                                                    17   Members.
                                                                    18         126. Defendant, prior to and at the time Representative Plaintiff and Class
                                                                    19   Members entrusted their PII and financial information to Defendant, caused
                                                                    20   Representative Plaintiff and Class Members to reasonably believe that Defendant
                                                                    21   would keep such PII and financial information secure.
                                                                    22         127. Defendant was aware, or should have been aware, that reasonable
                                                                    23   consumers would have wanted their PII and financial information kept secure and
                                                                    24   would not have contracted with Defendant, directly or indirectly, had they known
                                                                    25   that Defendant’s information systems were sub-standard for that purpose.
                                                                    26         128. Defendant was also aware that, if the substandard condition of and
                                                                    27   vulnerabilities in its information systems were disclosed, it would negatively affect
                                                                    28   Representative Plaintiff’s and Class Members’ decisions to seek services therefrom.

                                                                                                                   -29-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.65 Page 30 of 33




                                                                    1          129. Defendant failed to disclose facts pertaining to its substandard
                                                                    2    information systems, defects, and vulnerabilities therein before Representative
                                                                    3    Plaintiff and Class Members made their decisions to make purchases, engage in
                                                                    4    commerce therewith, and seek services or information. Instead, Defendant
                                                                    5    suppressed and concealed such information. By concealing and suppressing that
                                                                    6    information, Defendant denied Representative Plaintiff and Class Members the
                                                                    7    ability to make a rational and informed purchasing decision and took undue
                                                                    8    advantage of Representative Plaintiff and Class Members.
                                                                    9          130. Defendant was unjustly enriched at the expense of Representative
                                                                    10   Plaintiff and Class Members. Defendant received profits, benefits, and
                                                                    11   compensation, in part, at the expense of Representative Plaintiff and Class Members.
                                                                    12   By contrast, Representative Plaintiff and Class Members did not receive the benefit




COLE & VAN NOTE
                                                                    13   of their bargain because they paid for products/services that did not satisfy the
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   purposes for which they bought/sought them.
                                         OAKLAND, CA 94607
                                                                    15         131. Since Defendant’s profits, benefits, and other compensation were
                                          TEL: (510) 891-9800       16   obtained by improper means, Defendant is not legally or equitably entitled to retain
                                                                    17   any of the benefits, compensation, or profits it realized from these transactions.
                                                                    18         132. Representative Plaintiff and Class Members seek an Order of this
                                                                    19   Court requiring Defendant to refund, disgorge, and pay as restitution any profits,
                                                                    20   benefits, and other compensation obtained by Defendant from its wrongful conduct
                                                                    21   and/or the establishment of a constructive trust from which Representative Plaintiff
                                                                    22   and Class Members may seek restitution.
                                                                    23
                                                                    24                                   RELIEF SOUGHT
                                                                    25         WHEREFORE, Representative Plaintiff, individually and on behalf and
                                                                    26   each member of the proposed National Class and the California Subclass,
                                                                    27   respectfully requests that the Court enter judgment in favor of the Plaintiff Class(es)
                                                                    28   and for the following specific relief against Defendant as follows:

                                                                                                                  -30-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.66 Page 31 of 33




                                                                    1          1.     That the Court declare, adjudge, and decree that this action is a proper
                                                                    2    class action and certify each of the proposed classes and/or any other appropriate
                                                                    3    subclasses under F.R.C.P. Rule 23 (b)(1), (b)(2), and/or (b)(3), including
                                                                    4    appointment of Representative Plaintiff’s counsel as Class Counsel;
                                                                    5          2.     For an award of damages, including actual, nominal, and consequential
                                                                    6    damages, as allowed by law in an amount to be determined;
                                                                    7          3.     That the Court enjoin Defendant, ordering it to cease and desist from
                                                                    8    unlawful activities in further violation of California Business and Professions Code
                                                                    9    §17200, et seq.;
                                                                    10         4.     For equitable relief enjoining Defendant from engaging in the wrongful
                                                                    11   conduct complained of herein pertaining to the misuse and/or disclosure of
                                                                    12   Representative Plaintiff’s and Class Members’ PII, and from refusing to issue




COLE & VAN NOTE
                                                                    13   prompt, complete, and accurate disclosures to Representative Plaintiff and Class
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14   Members;
                                         OAKLAND, CA 94607
                                                                    15         5.     For injunctive relief requested by Representative Plaintiff, including
                                          TEL: (510) 891-9800       16   but not limited to, injunctive and other equitable relief as is necessary to protect the
                                                                    17   interests of Representative Plaintiff and Class Members, including but not limited to
                                                                    18   an Order:
                                                                    19                a.     prohibiting Defendant from engaging in the wrongful and
                                                                                             unlawful acts described herein;
                                                                    20
                                                                                      b.     requiring Defendant to protect, including through encryption, all
                                                                    21                       data collected through the course of business in accordance with
                                                                                             all applicable regulations, industry standards, and federal, state,
                                                                    22                       or local laws;
                                                                    23                c.     requiring Defendant to delete and purge the PII of Representative
                                                                                             Plaintiff and Class Members unless Defendant can provide to the
                                                                    24                       Court reasonable justification for the retention and use of such
                                                                                             information when weighed against the privacy interests of
                                                                    25                       Representative Plaintiff and Class Members;
                                                                    26                d.     requiring Defendant to implement and maintain a comprehensive
                                                                                             Information Security Program designed to protect the
                                                                    27                       confidentiality and integrity of Representative Plaintiff’s and
                                                                                             Class Members’ PII;
                                                                    28

                                                                                                                   -31-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.67 Page 32 of 33




                                                                    1                 e.      requiring Defendant to engage independent third-party security
                                                                                              auditors and internal personnel to run automated security
                                                                    2                         monitoring, simulated attacks, penetration tests, and audits on
                                                                                              Defendant’s systems on a periodic basis;
                                                                    3
                                                                                      f.      prohibiting Defendant from maintaining Representative
                                                                    4                         Plaintiff’s and Class Members’ PII on a cloud-based database;
                                                                    5                 g.      requiring Defendant to segment data by creating firewalls and
                                                                                              access controls so that, if one area of Defendant’s network is
                                                                    6                         compromised, hackers cannot gain access to other portions of
                                                                                              Defendant’s systems;
                                                                    7
                                                                                      h.      requiring Defendant to conduct regular database scanning and
                                                                    8                         securing checks;
                                                                    9                 i.      requiring Defendant to establish an information security training
                                                                                              program that includes at least annual information security
                                                                    10                        training for all employees, with additional training to be provided
                                                                                              as appropriate based upon the employees’ respective
                                                                    11                        responsibilities with handling PII, as well as protecting the PII of
                                                                                              Representative Plaintiff and Class Members;
                                                                    12
                                                                                      j.      requiring Defendant to implement a system of tests to assess its



COLE & VAN NOTE
                                                                    13                        respective employees’ knowledge of the education programs
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                                              discussed in the preceding subparagraphs, as well as randomly
                                                                    14                        and periodically testing employees’ compliance with
                                         OAKLAND, CA 94607
                                                                                              Defendant’s policies, programs, and systems for protecting
                                                                    15                        personal identifying information;
                                          TEL: (510) 891-9800       16                k.      requiring Defendant to implement, maintain, review, and revise
                                                                                              as necessary a threat management program to appropriately
                                                                    17                        monitor Defendant’s networks for internal and external threats,
                                                                                              and assess whether monitoring tools are properly configured,
                                                                    18                        tested, and updated;
                                                                    19                l.      requiring Defendant to meaningfully educate all Class Members
                                                                                              about the threats that they face as a result of the loss of their
                                                                    20                        confidential personal identifying information to third parties, as
                                                                                              well as the steps affected individuals must take to protect
                                                                    21                        themselves.
                                                                    22
                                                                    23           6.   For prejudgment interest on all amounts awarded, at the prevailing legal
                                                                    24   rate;
                                                                    25           7.   For an award of attorneys’ fees, costs, and litigation expenses, as
                                                                    26   allowed by law;
                                                                    27           8.   For all other Orders, findings, and determinations identified and sought
                                                                    28   in this Complaint.

                                                                                                                   -32-
                                                                                                                                 COMPLAINT FOR DAMAGES,
                                                                                                                          INJUNCTIVE AND EQUITABLE RELIEF
                                                                   Case 3:22-cv-00689-LL-BGS Document 1 Filed 05/16/22 PageID.68 Page 33 of 33




                                                                    1                                     JURY DEMAND
                                                                    2           Representative Plaintiff, individually and on behalf of the Plaintiff Class(es)
                                                                    3    and/or Subclass(es), hereby demands a trial by jury for all issues triable by jury.
                                                                    4
                                                                    5    Dated: May 16, 2022                      COLE & VAN NOTE
                                                                    6
                                                                    7                                             Cody A. Bolce
                                                                                                            By: _______________
                                                                    8                                           Cody A. Bolce, Esq.
                                                                                                                Attorneys for Representative Plaintiff
                                                                    9                                           and the Plaintiff Class(es)
                                                                    10
                                                                    11
                                                                    12




COLE & VAN NOTE
                                                                    13
                                     555 12TH STREET, SUITE 1725




                  ATTORNEYS AT LAW
                                                                    14
                                         OAKLAND, CA 94607
                                                                    15
                                          TEL: (510) 891-9800       16
                                                                    17
                                                                    18
                                                                    19
                                                                    20
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                                                                                                                  -33-
                                                                                                                                COMPLAINT FOR DAMAGES,
                                                                                                                         INJUNCTIVE AND EQUITABLE RELIEF


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71f63f6f0c632d26c07367d923184d194ddb42d0b6b077de7b5eeed359dbe859
Our copy
1.pdf
Original
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