Several CNET reporters have now filed suit against Hewlett Packard over the pretexting scandal last year, Dawn Kawamoto, Stephen Shankland and Tom Krazit. The specific claims are invasion of privacy, intentional infliction of emotional distress, and violations of California Business & Professions Code §§ 17200 et. seq. That means there will be discovery. The most remarkable detail already revealed is this:
In fact, Defendants continued to commit the alleged illegal and bad acts even after confirming that such actions were illegal and inappropriate.
The defendants so far are HP, Patricia Dunn, Kevin Hunsaker, and Does 1 through 100, which means that if others turn out to have been involved as shown by discovery, their names will be added as defendants.
But while the plaintiffs ask the court for injunctive relief and damages and punitive damages, I don't think this case is about money so much as it's about freedom of the press, the ability to report on a matter of interest to the public without being harassed or intimidated and without having your privacy, or your family's privacy, invaded. Courts can only make you whole to an extent, and that's why they award punitive damages sometimes. But it's not about the money; it's about making an example of a wrongdoer so others don't do the same thing, and so it doesn't become a habit, due to having insufficient penalties.
Here's Shankland's Complaint as PDF. Relatives have filed too. Rachel Konrad, Shankland's wife and a reporter for AP, has also sued. All of the complaints are available from the court and from the Plaintiff's law firm, Panish Shea & Boyle. Here's the press release. All the complaints, which are as far as I can see on a quick reading identical, were filed in California Superior Court for the County of San Francisco. So negotiations to try to avoid litigation evidently broke down. That surprises me beyond words, that HP would let this go to discovery and then trial.
I said I'd cover any such litigation if it happened, though, so I am making available Stephen Shankland's Complaint as text, as representative of the group.
HP has issued a statement:
"As we have said since last fall, HP regrets these events, and we have apologized individually to those who were affected," said Ryan Donovan, an HP spokesman. "In an attempt to resolve this matter short of litigation, HP made a substantial settlement offer to the reporters, their family members and a charity of their choice. Unfortunately, rather than respond to the offer, they have decided to sue. HP is disappointed by their decision and will defend itself."
When they file their answer, I'll provide it also. What does it all mean, aside from being unusual for reporters to sue companies they report on? Reporters don't much want to be the story, after all.
Looking at the complaint, I see a couple of other things. First, as mentioned, the plaintiffs seem to believe that HP continued their alleged activities after admitting they were illegal. They are asking for an injunction against any future such activities. And I gather there may be an issue about getting records back from HP. But the big issue seems to be punitive damages. They want the court to award not only an injunction to make sure HP never does this again, but punitive damages in an amount high enough to deter others from ever doing anything like it.
You can also go to the court website where all the complaints were filed to view them. For example, here's Shankland's. The court shows you only an image, and it's very, very hard to read. So are the PDFs. That means, of course, that I may have made errors in hand typing, so go by the court version for anything that matters. Thomas and Rebecca Shankland, his parents, have also filed. Tom Krazit has one filed too, as has Dawn Kawamoto. Her husband Jon is co-Plaintiff.
I'll explain the steps you need to take to find documents like this that are filed in state courts, as opposed to what you are used to, federal district courts, which would be found more easily on PACER. This is a bit more complex. Go to Groklaw's Legal Research page. Click on Courts, then ALSO by state. Notice all the amazing resources available to you. Cases, court information, court rules for each county, state government agencies, bar associations, law-related periodicals, municipal codes, rules of practice, etc. This is available for all states. This litigation is about California Business and Professions Code, for example, and you can scroll down to find the specific section referenced, 17200 et. seq. Isn't ALSO handy? Next, from ALSO's list of states, choose California. Scroll down the page to find the courts. You want Superior Court Web Sites, the one in San Francisco. That takes you to the Superior Court of California, County of San Francisco website. Look for
Civil Online Register of Actions in the right-hand menu. It's Case Number CGC-07-466208. Or search by Shankland as the keyword in Name Search, then Stephen from the results. Note that while it says the fee is $335, that's the filing fee, I believe. You can safely click view and read it for free. The court gives instructions for Windows and Apple Macs only. Sigh.
PANISH, SHEA & BOYLE, LLP
[address, phone, fax]
BRIAN J. PANISH, STATE BAR No. 116060
KEVIN R. BOYLE, STATE BAR No. 162710
RAHUL RAVIPUDI, STATE BAR No. 204619
Attorneys for Plaintiff
Filed Aug. 15, 2007
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
STEPHEN SHANKLAND, an individual,
HEWLETT-PACKARD COMPANY, a Delaware Corporation,
KEVEN T. HUNSAKER, an individual,
PATRICIA DUNN, an individual, and
DOES 1 through 100,
Case No. CGC-07-466208
1. Invasion of Privacy/Intrusion
2. Intentional Infliction of Emotional Distress
3. Violation of California Business & Professional Code §§ 17200 et. seq.
DEMAND FOR JURY TRIAL
FILED BY FAX
COMES NOW the Plaintiff, STEPHEN SHANKLAND, who, on information and belief, complains and alleges as follows:
1. Defendants have admitted that, as a general practice, they engaged in "pretexting" by attempting to obtain personal information of others through fraud and false pretenses. In an interview held on September 8, 2006, when asked if she believed pretexting is illegal, Defendant Patricia Dunn replied, "I have no idea, but it's wrong."
2. On September 12, 2006, Defendant Patricia Dunn, who was at the time Chairman of the Board for HP, admitted that pretexting "technologies were practiced on a number of individuals including certain directors, two employees and a number of individuals outside of the company including journalists."
3. To further highlight HP's widespread use of pretexting, on September 28, 2006, Defendant Patricia Dunn testified before the United States Congress that "the fraudulent misrepresentations of identity... was part of a standard arsenal" of HP tactics.
4. Subsequent to these disclosures and admissions, both State and Federal Governments initiated civil and criminal indictments on HP, and its officers and agents. As a result of the State Government investigations, on December 7, 2006, the Superior Court of the State of California entered a Final Judgment and Permanent Injunction, which, among other things, imposed monetary penalties of $14.5 million and required HP to undertake efforts to reform its corporate governance.
5. In addition, certain Defendants involved in the pretexting scandal have been indicted by the United States Government. In fact, in January 2007, Bryan Wagner, a Colorado private investigator, pleaded guilty to two felony charges in the San Jose federal court. In pleading guilty to two felony counts, Bryan Wagner admitted that he was paid as part of a conspiracy with HP to make fraudulent use of Social Security numbers and other confidential information to obtain the personal phone records of reporters and HP officials as well as their family members.
6. Moreover, the Federal Government was so alarmed by Defendants' conduct that it too became involved by expediting the drafting and enactment of legislation. The United States Congress drafted and the President signed into action the Telephone Records Privacy Act of 2006 which expressly outlaws pretexting in an attempt to obtain another's telephone records -- the very acts committed by Defendants.
7. Plaintiff is informed and believes, and thereupon alleges, that by using Plaintiff's social security number and other personal information, Defendants engaged in illegal and reprehensible conduct which includes, but is not limited to, contacting Plaintiff's home, work and cellular phone providers and falsely represented themselves as the Plaintiff in order to obtain his private telephone records.
8. Plaintiff had a reasonable expectation of privacy in the intercepted information and also had a reasonable expectation that such information would not be intercepted. Plaintiff only became aware of the intercepting and disclosure of his confidential communications and information within the last year.
9. Accordingly, the Plaintiff brings this action to redress Defendants' attempts to obtain his personal information through fraud and false pretenses.
10. Plaintiff, STEPHEN SHANKLAND, is, and at all relevant times herein was, a journalist and resident of the State of California.
11. Plaintiff is informed and believes, and thereupon alleges, that at all times mentioned herein, Defendant HEWLETT-PACKARD COMPANY (hereinafter referred to as "HP"), was and now is a corporation organized and existing under and by virtue of the laws of the State of Delaware, and that said Defendant has regularly conducted business in the State of California.
12. On information and belief, Defendant Kevin T. Hunsaker is an individual who, at all relevant times, was the in-house counsel and ethics chief for HP and was a resident of the State of California.
13. On information and belief, Defendant Patricia Dunn is an individual who, at all relevant times, was the Chairman of the Board of Hewlett Packard and a resident of the State of California.
14. The true names and/or capacities, whether individual, corporate, associate, governmental or otherwise of Defendants, DOES 1 through 100, inclusive, are unknown to Plaintiff at this time, who therefore sues said Defendants by such fictional names, and when the true names and/or capacities of said Defendants have been ascertained, Plaintiff will amend this complaint accordingly. Plaintiff is informed and believes, and thereupon alleges, that each Defendant entered herein as a DOE is responsible, negligently or in some other actionable manner, for the events and happenings hereinafter referred to, and caused injuries and damages proximately thereby to Plaintiff
as hereinafter alleged, either through said Defendants' own conduct or through the authorized and/or ratified conduct of its agents, servants or employees or in some other manner.
15. Plaintiff is informed and believes, and thereupon alleges, that at all times mentioned herein, Defendants, and each of them, including DOES 1 through 100, inclusive, were the agents, servants, employees, joint venturers, successors-in-interest and/or alter ego of their coDefendants, and were, as such, acting within the scope, course and authority of said agency, employment, joint venture, successorship-in-interest and/or alter ego and that each and every Defendant, as aforesaid, when acting as a principal, was negligent in the selection and hiring of each and every other Defendant as the agent, servant, employee and/or joint venturer, and that each and every Defendant, when acting as a manager, director and/or officer of the Defendant corporation, authorized, ratified or otherwise approved of the acts of its agents, employees and/or representatives as alleged herein.
FIRST CAUSE OF ACTION
(Invasion of Privacy/Intrusion as Against All Defendants)
17. Plaintiff repeats and incorporates herein by reference all of the allegations contained in the preceding paragraphs.
18. Plaintiff had a legally protected privacy interest in his confidential records.
19. Plaintiff had a reasonable expectation of privacy under the circumstances that his confidential records and communications would not be intercepted, copied and/or reviewed.
20. Defendants' conduct in pretexting to obtain Plaintiff's confidential records constitutes a serious invasion of privacy.
21. In addition, Defendants conspired to and intentionally intruded into the Plaintiff's solitude and private affairs by surreptitiously pretexting and obtaining information about Plaintiff's private affairs without his knowledge or consent, Defendants' intrusion was highly offensive to a reasonable person because, among other things, the intrusion resulted in the revelation of confidential and private communications.
22. As a direct and proximate result of Defendants' actions alleged above, Plaintiff suffered damages, including emotional distress damages, all according to proof at trial, but in excess of the minimum jurisdictional limit of the Court.
23. As a direct and proximate result of Defendants' actions alleged above, Plaintiff has lost and will continue to lose income, interest and benefits, in an amount to be proven at the time of trial, which amount is in excess of the minimum jurisdictional limit of the Court, as well as additional foreseeable consequential and incidental damages in an amount to be shown at the time of trial.
24. In addition, Defendants' conduct as described herein was done with a conscious disregard of Plaintiff's rights, and was done with the intent to vex and annoy him. In fact, Defendants continued to commit the alleged illegal and bad acts even after confirming that such actions were illegal and inappropriate. Defendants' acts constitute oppression, fraud and/or malice under California Civil Code Section 3294, entitling Plaintiff to an award of punitive damages in an amount appropriate to punish or set an example of the Defendants, and each of them, in an amount to be determined at trial.
SECOND CAUSE OF ACTION
(Intentional Infliction of Emotional Distress as Against All Defendants)
25. Plaintiff repeats and incorporates herein by reference all of the allegations contained in the preceding paragraphs.
26. Defendants' intentional acts of pretexting to obtain Plaintiff's confidential and personal records without his consent were outrageous.
27. Defendants intended to cause Plaintiff emotional distress or acted with reckless disregard of the probability of causing him emotional distress, and did so for the purpose of causing Plaintiff to suffer humiliation and mental anguish.
28. Plaintiff suffered severe emotional distress as a proximate result of Defendants' outrageous conduct.
29. As a direct and proximate result of Defendants' actions alleged above, Plaintiff suffered damages, including emotional distress damages, all according to proof at trial, but in excess of the minimum jurisdictional limit of the Court.
30. As a direct and proximate result of Defendants' actions alleged above, Plaintiff has lost and will continue to lose income, interest and benefits, in an amount to be proven at the time of trial.
31. In addition, Defendants' conduct as described herein was done with a conscious disregard of Plaintiff's rights, and was done with the intent to vex and annoy them. Defendants' acts constitute oppression, fraud and/or malice under California Civil Code Section 3294, entitling Plaintiff to an award of punitive damages in an amount appropriate to punish or set an example of Defendants, and each of them, in an amount to be determined at trial.
THIRD CAUSE OF ACTION
(Violations of Business & Professions Code §§ 17200 et. seq.
As Against HP and DOES 1 through 50)
32. Plaintiff repleads and incorporates herein by reference all of the allegations contained in the preceding paragraphs.
33. Business & Professional Code §§ 17200 et. seq. defines unfair business practices to include any "unlawful, unfair and fraudulent" business act or practice.
34. Defendants' widespread practice of pretexting as alleged above is unfair, fraudulent and deceptive.
35. By committing the acts and practices alleged above, Defendants have been and continue to be engaged in unfair and/or deceptive business practices within the meaning of the Business & Professional Code §§ 17200 et. seq.
36. Plaintiff has been injured in fact and has lost money and property as a result of Defendants' unfair business practices as alleged throughout this Complaint.
37. Defendants, through their acts of unfair and deceptive business practices, have obtained a value as a direct result of their scheme. Plaintiff requests that the Court impose relief by way of restitution by ordering that the Defendants return any direct or indirect gains to the Plaintiff and to enjoin Defendants from continuing to violate the Business & Professional Code by pretexting in the future.
38. As a further result, the Court should also order Defendants to make restitution of all ill-gotten gains attributable to these acts and practices, plus interest and award any other relief the Court deems appropriate.
39. Plaintiff also respectfully requests an award of attorneys' fees, costs and expenses upon prevailing in the request for relief against Defendants.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff prays judgment against Defendants HP, Kevin T. Hunsaker, Patricia Dunn, and DOES 1 through 100, and each of them, as follows:
1. General damages according to proof and beyond the jurisdictional minimum of this court;
2. Punitive damages in an amount to be determined by the trier of fact;
3. Damages for loss of earnings, past and future, according to proof;
4. Damages for lost earning capacity, according to proof;
5. Damages for Plaintiff's other economic losses, according to proof;
6. Cost of suit incurred herein;
7. Such other relief as the court deems just and proper.
WHEREFORE, Plaintiff further prays judgment against Defendants HP and DOES 1 through 50, and each of them as follows:
8. Restitution as permitted under California Business & Professional Code §§ 17200 et. seq.
9. Disgorgement of profits as permitted under California Business & Professional Code §§ 17200 et. seq.
10. Injunctive Relief as permitted under California Business & Professions Code §§ 17200 et. seq.
11. Reasonable attorneys' fees as permitted under California Business & Professions Code §§ 17200 et. seq.
DATED: August 14, 2007
PANISH, SHEA & BOYLE, LLP
BRIAN J. PANISH
KEVIN R. BOYLE
Attorneys for Plaintiff
DEMAND FOR JURY TRIAL
Plaintiff hereby demands a trial by jury for all causes of action in the instant matter.
DATED: August 14, 2007
PANISH, SHEA & BOYLE, LLP
BRIAN J. PANISH
KEVIN R. BOYLE
Attorneys for Plaintiff