Case 3:19-cv-07185-JSC Document 1 Filed 10/31/19 Page 1 of 24
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`Jahan C. Sagafi (State Bar No. 224887)
`OUTTEN & GOLDEN LLP
`One California Street, 12th Floor
`San Francisco, CA 94111
`Telephone: (415) 638-8800
`Facsimile: (415) 638-8810
`Email: jsagafi@outtengolden.com
`
`Adam T. Klein*
`Michael Litrownik*
`OUTTEN & GOLDEN LLP
`685 Third Avenue, 25th Floor
`New York, NY 10017
`Telephone: (212) 245-1000
`Facsimile: (646) 509-2060
`Email: atk@outtengolden.com
`Email: mlitrownik@outtengolden.com
`
`Jason R. Flanders (State Bar No. 238007)
`AQUA TERRA AERIS LAW GROUP
`490 43rd Street
`Oakland CA 94609
`Phone: (916) 202-3018
`Email: jrf@atalawgroup.com
`
`Peter Romer-Friedman*
`Pooja Shethji*
`OUTTEN & GOLDEN LLP
`601 Massachusetts Ave. NW
`Suite 200W
`Washington, DC 20001
`Telephone: (202) 847-4400
`Facsimile: (646) 952-9114
`Email: prf@outtengolden.com
`Email: pshethji@outtengolden.com
`
`William Most (State Bar No. 279100)
`LAW OFFICE OF WILLIAM MOST
`201 St. Charles Ave., Ste. 114, # 101
`New Orleans, LA 70170
`Phone: (504) 509-5023
`Email: williammost@gmail.com
`
`Matthew K. Handley*
`Rachel Nadas*
`HANDLEY FARAH & ANDERSON PLLC
`777 6th Street, NW
`Eleventh Floor
`Washington, DC 20001
`Phone: (202) 559-2411
`Email: mhandley@hfajustice.com
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`Attorneys for Plaintiff and Proposed Class Members
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` *
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` pro hac vice application forthcoming
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`SAN FRANCISCO DIVISION
`NEUHTAH OPIOTENNIONE, on behalf of
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`herself and others similarly situated,
`CASE NO. ________
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`
`Plaintiffs,
`COMPLAINT FOR
`VIOLATIONS OF STATE LAWS
`CLASS ACTION
`DEMAND FOR JURY TRIAL
`
`
`v.
`FACEBOOK, INC.,
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`Defendant.
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`CLASS ACTION COMPLAINT
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`Case 3:19-cv-07185-JSC Document 1 Filed 10/31/19 Page 2 of 24
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`SUMMARY OF CLAIMS
`Plaintiff respectfully submits the following Class Action Complaint against Facebook, Inc. on
`behalf of herself and a proposed nationwide class of older and female Facebook users (defined below)
`who were denied the opportunity to receive advertising and information about financial services
`opportunities within Facebook’s business establishment in violation of the California Unruh Civil
`Rights Act, Cal. Civ. Code §§ 51, 51.5 and 52 (“Unruh Act”).
`Plaintiff and the proposed class members have been denied the opportunity to learn
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`about and obtain financial services, such as mortgages, personal loans, bank accounts, insurance,
`investment opportunities, and financial consulting services over the past three years (or longer) due to
`Facebook’s discriminatory advertising and business practices and its aiding and abetting of financial
`services companies’ discriminatory advertising and business practices.
`Facebook’s discriminatory practices are straight-forward. Over the past three years,
`2.
`Facebook required all users to tell Facebook their age and gender as a condition of using Facebook’s
`services. Then, Facebook segregated and classified all of its users based on their genders and ages, so
`that advertisers could send their ads only to people of specific genders or ages. And Facebook
`encouraged its advertisers, including financial services companies, to send advertisements that
`excluded Facebook users from receiving the ads based on their ages or genders. Then, advertisers and
`Facebook followed this direction by routinely placing financial services advertisements on Facebook
`that excluded older persons and women.
`Due to Facebook’s discriminatory practices, millions of older and female Facebook
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`users have been denied the opportunity to receive valuable advertisements about financial services
`opportunities that advertisers sent to younger persons and men, and to pursue those financial services
`opportunities within and outside of Facebook. As a result, Facebook intentionally denied its own users
`the full and equal accommodations, advantages, facilities, and services of Facebook, and it aided and
`abetted numerous financial services companies in denying Facebook’s users the full and equal
`accommodations, advantages, facilities, and services of those financial services companies.
`For at least three years, Facebook has been on notice that its discriminatory advertising
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`and business practices for financial services opportunities classify and segregate Facebook users based
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`on protected characteristics and deny them equal treatment in Facebook’s business establishment based
`on protected characteristics such as age and gender. Nonetheless, Facebook has not changed its
`practices with respect to financial services opportunities and advertising (other than certain changes
`that Facebook made with respect to credit-related opportunities and advertising in September 2019).
`In September 2019, Facebook took meaningful steps to bar advertisers from placing
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`advertisements for credit-related opportunities that discriminated against users based on age or gender.
`However, upon information and belief, Facebook has continued to deny equal opportunity to older
`persons and women regarding all other financial services opportunities aside from credit opportunities.
`Thus, both before and after September 2019, Facebook has routinely placed advertisements for
`financial services opportunities other than credit that excluded older persons and women.
`There is no lawful or legitimate basis to exclude older persons or women from receiving
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`the full and equal accommodations, advantages, facilities, and services of Facebook and the financial
`services companies that advertise financial services opportunities via Facebook.
`Every time that Facebook and a financial services company together and intentionally
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`have excluded an older person or a woman from receiving information about financial services
`opportunities on Facebook based on age or gender, Facebook violated the Unruh Act and aided and
`abetted those financial services companies in their own violations of the Unruh Act.
`Plaintiff brings this action on behalf of older and female Facebook users who have been
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`denied full and equal accommodations, advantages, facilities, and services of Facebook and the
`financial service companies advertising on Facebook due to their age or gender, as defined in
`Paragraph 60 below. In this action, Plaintiff seeks a declaration that Facebook has violated the Unruh
`Act in its own business establishment and aided and abetted financial services companies who have
`done the same in their own business establishments; an injunction to stop Facebook from continuing to
`engage in such violations; and statutory penalties for each instance of exclusion on Facebook from the
`ability to receive advertisements for financial services opportunities.
`JURISDICTION AND VENUE
`The Court has subject matter jurisdiction over the claims in this action pursuant to 28
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`U.S.C. § 1332(d)(2), as the matter in controversy exceeds the sum or value of $5 million, exclusive of
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`interest and costs, and it is a class action in which Plaintiff and members of the proposed class are
`citizens of different states than Facebook.
`This Court has personal jurisdiction over Facebook. There is general jurisdiction over
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`Facebook, as Facebook’s corporate headquarters are located in this District in Menlo Park, California,
`Facebook conducts substantial business throughout this District and in the State of California, and
`Facebook employs thousands of workers in the State. Facebook has consented to this Court asserting
`personal jurisdiction over Facebook, as Facebook’s Terms of Service require its users to resolve any
`disputes in the Northern District of California or a state court located in San Mateo County and require
`its users to “submit to the personal jurisdiction of either of these courts for the purpose of litigating any
`such claims.” Facebook, Terms of Service, https://www.facebook.com/terms.php.
`Declaratory and injunctive relief is sought and authorized by 28 U.S.C. §§ 2201 and
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`2202.
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`Venue is proper in this District under 28 U.S.C. § 1391(b)(1), as the sole Defendant
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`resides in this District, and under 28 U.S.C. § 1391(b)(2), as a substantial part of the events or
`omissions giving rise to Plaintiff’s claims occurred in this District. Venue is also proper because
`Facebook’s Terms of Service require its users to resolve any disputes in the Northern District of
`California or a state court located in San Mateo County. The same Terms of Service provide that “the
`laws of the State of California will govern these Terms and any claim, without regard to conflict of law
`provisions.” Facebook, Terms of Service, https://www.facebook.com/terms.php.
`INTRADISTRICT ASSIGNMENT
`Pursuant to N.D. Cal. Local Rules 3-2(c) and (d), intradistrict assignment to the San
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`Francisco Division is proper because a substantial part of the events that gave rise to the claims
`asserted herein occurred in San Mateo County.
`THE PARTIES
`Plaintiff Neutah Opiotennione is a 54-year-old woman who lives in Washington, D.C.
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`Over the past three years, Ms. Opiotennione has regularly used Facebook. As part of her regular use of
`Facebook, she has been interested in receiving advertising and other information about financial
`services opportunities in Facebook advertisements. Like other members of the proposed Class, Ms.
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`Case 3:19-cv-07185-JSC Document 1 Filed 10/31/19 Page 5 of 24
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`Opiotennione has routinely been denied advertisements and information about financial services
`opportunities on Facebook due to her age and gender over the past three years.
`Defendant Facebook, Inc. is a publicly traded corporation, headquartered at 1601
`15.
`Willow Road, Menlo Park, California, 94025, incorporated under the laws of the State of Delaware.
`Facebook owns and operates an online social networking web site that allows its users to communicate
`with each other through the sharing of text, photograph, and video, and allows financial services
`companies to advertise financial services opportunities to hundreds of millions of Facebook users in
`the United States. In December 2018, Facebook had 1.52 billion daily active users globally and in
`2018 the company earned $55.85 billion in revenue, substantially all of which was generated from
`selling advertising placements to marketers. Facebook 2018 Annual Report,
`https://www.sec.gov/Archives/edgar/data/1326801/000132680119000009/fb-12312018x10k.htm.
`FACTUAL ALLEGATIONS
`Facebook is one of the most popular business establishment on the internet with which
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`Americans interact. According to its 2018 Annual Report, in 2018 Facebook had 1.52 billion daily
`active users and 2.32 billion monthly active users. Id. at 35. A daily active user is “a registered
`Facebook user who logged in and visited Facebook through [its] website or a mobile device, or used
`[its] Messenger application (and is also a registered Facebook user), on a given day.” Id. at 36. A
`monthly active user is “a registered Facebook user who logged in and visited Facebook through [its]
`website or a mobile device, or used our Messenger application (and is also a registered Facebook user),
`in the last 30 days as of the date of measurement.” Id. at 37.
`According to Facebook’s annual report, “Facebook enables people to connect, share,
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`discover, and communicate with each other on mobile devices and personal computers. There are a
`number of different ways to engage with people on Facebook, including News Feed which displays an
`algorithmically-ranked series of stories and advertisements individualized for each person.” Id. at 5.
`Instagram is a similar social media platform for “for sharing photos, videos, and messages.” Id. In
`addition, Messenger is a messaging application that Facebook provides to its customers to engage in
`messaging with each other. Id.
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`Facebook sells advertising to companies who pay Facebook to place their
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`advertisements on users’ News Feeds on Facebook, as well as on Instagram and Messenger.
`According to Facebook’s 2018 Annual Report, Facebook’s “ads enable marketers to
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`reach people based on a variety of factors including age, gender, location, interests, and behaviors.
`Marketers purchase ads that can appear in multiple places including on Facebook, Instagram,
`Messenger, and third-party applications and websites.” Id.
`Facebook knows the age and gender of each of its users because Facebook requires
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`users to tell Facebook their birth date and gender as a condition of joining Facebook and continuing to
`use Facebook’s services.
`After Facebook users join Facebook, the age and gender information they are required
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`to provide Facebook is used by Facebook to segregate, classify, and categorize users based on age and
`gender. The primary purpose of this segregation, classification, and categorization of users based on
`age and gender is to make it easy for and to encourage advertisers to target their advertisements to
`Facebook users based on their age or gender.
`Upon information and belief, Facebook’s Chief Operating Officer Sheryl Sandberg has
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`called age and gender targeting of advertisements part of Facebook’s “special sauce.” That is, having
`the ability to target ads based on the age and/or gender of Facebook users makes it possible for
`advertisers to send their advertisements only to specific desired audiences and thereby reduce the cost
`for advertisers to reach customers in these specific targeted audiences and enhance interactions by
`potential customers in the specific desired audiences with companies’ advertisements and business
`establishments.
`23. When an advertiser seeks to create, purchase, and send a paid advertisement to
`Facebook users on Facebook, Instagram, or Messenger, it must select the audience of Facebook users
`who will be eligible to receive the advertisement (“audience selection”). Once the audience selection
`is completed, the advertiser determines the image and text of the ad, identifies the Facebook page or
`other web page to which the ad will link, and purchases a certain number of impressions or clicks. (An
`impression occurs every time a Facebook user is shown an ad on Facebook. A click occurs every time
`a Facebook user clicks on an ad on Facebook). Then Facebook sends the advertisement to the
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`Case 3:19-cv-07185-JSC Document 1 Filed 10/31/19 Page 7 of 24
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`Facebook users within the audience selection that the advertiser chose. Any Facebook user who is not
`within the audience selection will not have the opportunity to receive that specific paid advertisement.
`Every time that Facebook sends an advertisement to Facebook users within an audience
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`selection that excludes persons from receiving ads based on a protected status such as age or gender,
`Facebook knows that and intends for the ad only to be sent to the persons within the audience selection
`and it knows that and intends for the ad to be denied to persons who are excluded from the audience
`selection, including but not limited to ads for financial services opportunities.
`25. When an advertiser determines the audience selection, it is required to make three
`selections that establish the basic parameters of the audience selection: (1) age; (2) gender; and (3)
`location. These audience selection tools are presented to advertisers through drop down menus that
`make clear to advertisers that they can include or exclude persons with certain ages and/or genders
`from their audience selections. These tools classify, categorize, and segregate Facebook users based
`on their age and/or gender. And Facebook users cannot opt out of telling their age or gender to
`Facebook, and cannot opt out of audience selection exclusions that advertisers and Facebook make.
`The audience selection tools related to age, gender, and location look like this:
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`Facebook requires advertisers to select the age of the Facebook users who will receive
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`the ad. The default setting for Facebook ads is 18 to 65+, which means that anyone who is 18-years-
`old or older would receive the ad. But Facebook strongly encourages advertisers to narrow the age
`range of the individuals who will receive their ads to make them more effective.
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`Facebook requires the advertiser to select the gender of the Facebook users who will
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`receive the ad. The default setting is all genders. But Facebook strongly encourages advertisers to
`narrow the gender of the individuals who will receive their ads to make them more effective, including
`by excluding women from audience selections.
`Unlike the prior image that shows an audience selection of persons who are 18 or older
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`of all genders, the following image shows an audience selection restricted to men who are 18 to 40.
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`Upon information and belief, Facebook encourages, facilitates, expects, knows, and
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`wants advertisers to routinely exclude older persons and women from their audience selections so that
`older persons and women will not receive advertisements on Facebook, including advertisements for
`financial services opportunities. Facebook encourages, facilitates, enables, and executes on the
`exclusion of older persons and women from receiving information and advertisements, because such
`age- and gender-based exclusions are central to Facebook’s business model, including because
`Facebook wants ads to be as “relevant” as possible to its users so that users will spend more time on
`Facebook and allow Facebook to sell and place more paid advertisements on Facebook.
`In a training program for advertisers, Facebook strongly encourages advertisers to
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`exclude users based on age and gender in its “Facebook Blueprint” course, which describes “How to
`Find Your Customers on Facebook.” It states that “When you advertise on Facebook, you have the
`ability to create an audience. It’s one of the most important and powerful things you can do here.
`When thinking about your audience and how to build it, consider the types of people who are most
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`Case 3:19-cv-07185-JSC Document 1 Filed 10/31/19 Page 9 of 24
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`likely to be interested in what you’re sharing.” Facebook, How to Find Your Customers on Facebook,
`https://www.facebook.com/business/learn/lessons/facebook-ad-audience-considerations
`In Facebook Blueprint, Facebook describes how to set an audience, “That’s where you
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`can get specific about who you want to reach. In other words, the audience for your ad.” Id. The first
`example that Facebook provides on how to set an audience encourages advertisers to send ads to only
`men or only women: “Let’s start with gender. If you want, you can choose to reach out to only men or
`only women. If you have a bridal dress shop, women might be a better audience for you. But if you
`have a shaving and beard grooming business, maybe you’ll want to reach out to men.” It proceeds to
`describe how ads can be targeted to people based on age. Nowhere in this section of the training does
`Facebook state that financial services advertisements should not be restricted by age or gender.
`In the next section of the training, “How to Choose an Audience for Your Facebook
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`Ad,” Facebook states that “To get started creating your audience, think about your business’s best
`customers. Are they often of a certain age or gender? . . . Reach out to these kinds of people first.” Id.
`In other words, Facebook encourages its advertisers to determine who they think their best customers
`are based on age or gender and then send their ads only to those people, thereby excluding people who
`do not fit the age or gender profile of their best customers.
`In addition, on Facebook Business, the web site where Facebook instructs and directs
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`advertisers on how to use its audience selection tools to create advertisements, Facebook states that
`“Our powerful audience selection tools let you show ads to the people who are exactly right for your
`business.” Facebook Business, Find Your Audience, https://www.facebook.com/business/ads/ad-
`targeting. It explains that “Facebook Core Audiences helps you select the right recipients for your ad
`in just a few clicks. Whether you want your ad to be shown to people based on age, location, hobbies,
`or something else—we can help you connect to people who are likely to be interested in what you
`offer.” Id.
`One of the chief examples of how to “Reach your core target audience” is
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`“Demographics.” Facebook states that advertisers should “Select an audience based on age, gender,
`education, relationship status, job title and more.” Id. In a prior version of the same Facebook
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`Business page, Facebook provided an illustration of how to reach a core target audience with a box that
`showed an ad targeting selection to send the ad only to people who were 18 to 34 years old.
`In the same Facebook Business center, Facebook provides “4 Tips for Selecting Your
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`Ad Audience,” and states that “Audiences can be built based on locations, interests, demographics and
`other characteristics. When you create an audience, you’ll want to think about the characteristics of
`people most likely to be interested in your product, service or business and how broad or narrow your
`audience is.” Facebook Business, 4 Tips for Selecting Your Audience,
`https://www.facebook.com/business/learn/lessons/facebook-ad-audience-reach-tips. (The same four
`tips are reiterated on Facebook Blueprint’s How to Find Your Customers on Facebook guide.)
`The first tip Facebook provides is to “Consider your current customer base” and “Think
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`about what they like, how old they are and the interests they have. This can help you identify audience
`options that will help you reach people like them on Facebook.” Id. (emphasis added). The first
`example that Facebook provides for this tip is “If the majority of your current customers are women, it
`might be a good idea to set your audience to reach women and exclude men.” Id.
`Another tip that Facebook offers is to “Watch the audience meter to see whether your
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`audience is too specific or too broad.” Id. When an advertiser is determining its audience selection, a
`red, green, and yellow “audience meter” tells the advertiser whether its audience is too specific (RED),
`too broad (YELLOW), or just right (GREEN). The audience meter looks like this.
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`38. When advertisers determine their audience selections, Facebook’s audience meter tells
`the advertiser when the ad is too broad or too narrow. For example, if all ages and genders are
`included in an audience selection, the audience meter may tell the advertiser that the audience selection
`is too broad and point towards the yellow “Broad” area. However, when the advertiser eliminates
`persons who are older than 40 from the audience selection or eliminates women from the audience
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`selection, Facebook’s audience meter may change from pointing to yellow to pointing to green. As a
`result, Facebook’s audience meter encourages advertisers to exclude Facebook users based on age and
`gender from their audience selections.
`Even after an advertiser has selected an audience and purchased advertisements on
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`Facebook, Facebook continues to encourage and prod advertisers to exclude persons from advertisers’
`audience selections based on age and gender. On a real-time basis, Facebook provides advertisers with
`information on the age and gender of persons who are clicking on their ads, so that advertisers can see
`the demographics of persons who seem to be most interested in clicking on and engaging their ads.
`Upon information and belief, in turn, advertisers routinely receive this information and further refine
`their audience selections in ongoing and new ad campaigns to exclude older persons or women,
`because Facebook has told them that older persons or women are less interested in their advertisements
`than younger persons or men. For example, if an advertiser sees that 90% of the people who click on
`their ads are 44-years-old or younger, the advertiser may decide not to send ads to persons older than
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`This is not an incidental by-product of Facebook providing such information. The
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`primary reason why Facebook provides this information is that Facebook wants and encourages
`advertisers to exclude persons from their audience selections based on age and/or gender.
`Over the past three years, Facebook has routinely excluded older persons and/or women
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`from its business services by intentionally, knowingly, and purposefully excluding older persons and
`women from audience selections for thousands of advertisements related to financial services
`opportunities.
`The following advertisements are examples of where Facebook and financial services
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`companies selected and executed upon age- or gender-restricted audience selections that denied older
`persons and/or women, including Plaintiff, the full and equal accommodations, advantages, facilities,
`and services, within the past three years.
`In the past year, AAFMAA sent the following advertisement regarding loans only to
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`“people ages 24 to 40 who live in the United States,” thereby excluding all Facebook users older than
`40 in the United States from receiving this advertisement.
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`In the past year, Webull sent the following advertisement regarding stock trading
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`services only to “men ages 20 and older who live in the United States,” thereby excluding all female
`Facebook users in the United States from receiving this advertisement.
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`In the past year, Partbnb sent the following advertisement regarding investment in
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`Airbnb properties only to “men ages 30 to 50 who live or were recently in the United States,” thereby
`excluding all female Facebook users and all persons older than 50 in the United States from receiving
`this advertisement.
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`Case 3:19-cv-07185-JSC Document 1 Filed 10/31/19 Page 13 of 24
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`In the past year, Ladder sent the following advertisement regarding life insurance only
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`to “people ages 25 to 45 who live in the United States,” thereby excluding all Facebook users older
`than 45 in the United States from receiving this advertisement.
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`For at least the past three years, Facebook has known that it was denying these and
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`other types of financial services opportunities to older persons and women on its platform. Every time
`Facebook and an advertiser published a financial services advertisement to Facebook users that
`excluded older persons or women from receiving the ads, Facebook and the advertiser knew, intended,
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`Case 3:19-cv-07185-JSC Document 1 Filed 10/31/19 Page 14 of 24
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`and wanted those persons to be excluded from or discriminated against in Facebook’s business
`establishment and those of the third-party advertisers.
`In addition to having knowledge that its own advertising and business services were
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`being provided in a discriminatory way towards older persons and women with respect to financial
`services opportunities, Facebook has long been on specific notice that Facebook and financial services
`companies were discriminating in providing advertising and business services relating to financial
`services to older persons and women.
`In early 2017, Facebook created a “classifiers” program that identifies which ads are
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`likely to be credit, housing, or employment related. Facebook initially created the classifiers program
`to block advertisers from excluding Facebook users based on their perceived race using Facebook’s
`“Ethnic Affinity” categories. Facebook created this classifiers program to prevent the exclusion of
`Facebook users in certain “Ethnic Affinity” categories in response to an October 2016 ProPublica
`report that demonstrated that Facebook users who Facebook had identified as having the “Ethnic
`Affinity” of African American, Hispanic, or Asian American could be “illegal[ly]” and “blatant[ly]”
`excluded from housing-related advertisements in violation of the federal Fair Housing Act. Julia
`Angwin & Terry Parris Jr., Facebook Lets Advertisers Exclude Users by Race, ProPublica (Oct. 28,
`2016).
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`As a result, since early 2017 Facebook has specifically known every time that financial
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`services companies were likely seeking to purchase credit-related advertisements, including when such
`advertisements would exclude Facebook users based on age or gender. Upon information and belief,
`prior to September 2019, Facebook knowingly and intentionally approved, sold, and sent numerous
`credit-related advertisements in which older persons and women were excluded, and Facebook took no
`action to stop this practice in spite of its knowledge that these ads might violation various federal,
`state, and/or local laws.
`In September 2019, pursuant to a settlement of several separate civil rights actions,
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`Facebook adopted new rules designed to prevent advertisers from using age, gender, and other
`protected statuses to exclude Facebook users from receiving credit, housing, and employment related
`advertisements. As a result, advertisers who want to advertise credit opportunities will have to create
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`Case 3:19-cv-07185-JSC Document 1 Filed 10/31/19 Page 15 of 24
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`those advertisements in a special portal that does not allow age or gender targeting, and an enhanced
`classifiers program will attempt to block credit ads that ar