Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 1 of 58
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`HUNTON ANDREWS KURTH LLP
`Ann Marie Mortimer (State Bar No. 169077)
`amortimer@HuntonAK.com
`Jason J. Kim (State Bar No. 221476)
`kimj@HuntonAK.com
`Jeff R. R. Nelson (State Bar No. 301546)
`jnelson@HuntonAK.com
`550 South Hope Street, Suite 2000
`Los Angeles, California 90071-2627
`Telephone: (213) 532-2000
`Facsimile: (213) 532-2020
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`Attorneys for Plaintiffs
`FACEBOOK, INC. and INSTAGRAM, LLC
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`
`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`OAKLAND/SAN FRANCISCO DIVISION
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` CASE NO.: 3:20-cv-07345
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`COMPLAINT; DEMAND FOR JURY
`TRIAL
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`FACEBOOK, INC., a Delaware
`corporation and INSTAGRAM, LLC, a
`Delaware limited liability company,
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`
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`Plaintiffs,
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`v.
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`
`
`SEAN HEILWEIL, and JARRETT
`LUSSO, d/b/a “BOOSTGRAM”
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`Defendants.
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`COMPLAINT; DEMAND FOR JURY TRIAL
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`3:20-cv-07345
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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 2 of 58
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`Plaintiffs Facebook, Inc. (“Facebook”) and Instagram, LLC (“Instagram”) allege
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`the following:
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`INTRODUCTION
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`1.
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`Since at least August 1, 2015, and continuing to the present, Defendants
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`Sean Heilweil and Jarret Lusso operated an unlawful business using the website
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`boostgram.com. Defendants’ business artificially inflated the “likes” and “followers”
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`of Instagram accounts (a practice known as “fake engagement”). Defendants used a
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`network of computers or “bots,” computer scripts, and their customers’ Instagram
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`accounts to deliver automated “likes” and “followers” to Instagram accounts, and
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`promoted their fake engagement service using a diluting domain name, in violation of
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`Instagram’s Terms of Use, Community Guidelines, and Platform Policy and state and
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`federal laws.
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`2.
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`Defendants interfered with and continue to interfere with Instagram’s
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`service, created an inauthentic experience for Instagram users, and attempted to
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`fraudulently influence Instagram users for their own enrichment. Facebook and
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`Instagram bring this action to stop Defendants’ ongoing and future misuse of Plaintiffs’
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`platform and infringing activity. Facebook and Instagram also bring this action to
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`obtain compensatory and punitive damages pursuant to the California Comprehensive
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`Computer Data Access and Fraud Act, Section 502 (the “CCCDAFA”); Computer
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`Fraud and Abuse Act, 18 U.S.C. § 1030 (the “CFAA”), the Lanham Act, 15 U.S.C. §
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`1125 (c) and (d), and for breach of contract. Facebook and Instagram also seek
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`disgorgement of Defendants’ illicit profits for unjust enrichment.
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`PARTIES
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`3.
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`Plaintiff Facebook is a Delaware corporation with its principal place of
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`business in Menlo Park, California.
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`4.
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`Plaintiff Instagram is a Delaware limited liability company with its
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`principal place of business in Menlo Park, California. Instagram is a subsidiary of
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`Facebook.
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`COMPLAINT; DEMAND FOR JURY TRIAL
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`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 3 of 58
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`5.
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`Defendant Sean Heilweil is an individual who is domiciled in the state of
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`New York.
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`6.
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`Defendant Jarrett Lusso is an individual who is domiciled in the state of
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`New York.
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`7.
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`Since at least August 1, 2015, Defendants Lusso and Heilweil have
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`controlled the boostgram.com fake engagement service. Exs. 1-2. On their website,
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`Defendants offered users a way to “increase [their] Instagram exposure” and “get real
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`organic engagement on [their] Instagram account in just three clicks.” Ex. 3.
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`JURISDICTION AND VENUE
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`8.
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`This Court has subject matter jurisdiction over the federal causes of action
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`alleged in this Complaint pursuant to 28 U.S.C. § 1331.
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`9.
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`This Court has supplemental jurisdiction over the state law causes of action
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`alleged in this Complaint pursuant to 28 U.S.C. § 1367 because these claims arise out
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`of the same nucleus of operative facts as Facebook and Instagram’s federal claim.
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`10.
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`In addition, this Court has jurisdiction over all the causes of action alleged
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`in this Complaint pursuant to 28 U.S.C. § 1332 because complete diversity between the
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`Plaintiffs and each of the named Defendants exists, and because the amount in
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`controversy exceeds $75,000.
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`11. This Court has personal jurisdiction over Defendants because each
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`Defendant had an Instagram account and agreed to Instagram’s Terms of Use.
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`Additionally, Defendants, through their business, acquired access to their customers’
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`Instagram accounts, and used those accounts to provide fake engagement. Accordingly,
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`the Court has personal jurisdiction over Defendants because Instagram’s Terms of Use
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`contain a forum selection clause that requires this complaint be resolved exclusively in
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`this Court and that Defendants submit to the personal jurisdiction of this Court.
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`12. This Court also has personal jurisdiction over Defendants because they
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`knowingly and intentionally directed their actions at California, and at Facebook and
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`Instagram, which have their principal place of business in California. Defendants’
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`2
`COMPLAINT; DEMAND FOR JURY TRIAL
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`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 4 of 58
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`business model depended on accessing and using Instagram in order to artificially
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`manipulate Instagram accounts in exchange for money and used a mark that dilutes
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`Instagram marks. Additionally, Defendants transacted business and engaged in
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`commerce in California by, among other things, knowingly using a server and computer
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`network located in the Northern District of California to operate their fake engagement
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`service.
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`13. Venue is proper in this Judicial District pursuant to 28 U.S.C. § 1391(b),
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`as the threatened and actual harm to Facebook and Instagram occurred in this District.
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`14. Pursuant to Civil L.R. 3-2(c), this case may be assigned to either the San
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`Francisco or Oakland division because Facebook and Instagram are located in San
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`Mateo County.
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`FACTUAL ALLEGATIONS
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`A. Background on Instagram and Facebook
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`15. Facebook is a social networking website and mobile application that
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`enables its users to create their own personal profiles and connect with each other on
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`their personal computers and mobile devices. As of August 2020, Facebook daily active
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`users averaged 1.79 billion and monthly active users averaged 2.7 billion. Facebook
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`has several products, including Instagram. Facebook owns and operates the Instagram
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`service, platform, and computers.
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`16.
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`Instagram is a photo and video sharing service, mobile application, and
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`social network. Instagram users can post photos and videos to their profile and share
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`them with their followers or a select group of friends. Instagram users can also view,
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`comment on, and “like” posts shared by others on Instagram.
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`17.
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`Instagram users can gain followers, views, and likes, but only from other
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`registered Instagram users. If a visitor to Instagram does not have an Instagram account
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`and tries to “like” a post, the visitor is redirected to the Instagram login page to enter
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`their Instagram credentials or to create an Instagram account.
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`COMPLAINT; DEMAND FOR JURY TRIAL
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`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 5 of 58
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`18. When an Instagram user posts a photo to their account, other Instagram
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`users can view the photo, and choose to “like” it and add a comment to the post. For
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`private accounts, followers of the private account can see the post. For public accounts,
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`anyone with an Instagram account can see the post. When a photo is liked or a comment
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`about the post is added, that like and comment can be seen by anyone who can see the
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`post. An Instagram user can also choose to “follow” another Instagram user. Instagram
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`users can see the total number of users following an Instagram account. For marketing
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`and other commercial purposes, certain Instagram users strive to increase the number
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`of followers, views, comments, and likes they receive to increase their visibility and
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`popularity on Instagram.
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`B.
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`Instagram’s Terms of Use, Guidelines, and Platform Policy
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`19. Everyone who uses Instagram agrees to Instagram’s Terms of Use
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`(“Terms”) and other rules that govern access to and use of Instagram, including
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`Instagram’s Community Guidelines, Brand Guidelines, and Platform Policy
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`(collectively, “Terms and Policies”).1 Since April 2018, the Instagram Terms state that
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`because Instagram is a Facebook product, the Instagram Terms constitute an agreement
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`between the Instagram users and Facebook.
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`20. Since at least April 2018, Instagram’s Terms have prohibited users from
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`(a) “do[ing] anything unlawful, misleading, or fraudulent or for an illegal or
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`unauthorized purpose”; (b) “interfer[ing] with or impair[ing] the intended operation of
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`[Instagram]”; (c) “attempt[ing] to buy, [or] sell . . . any aspect of [an Instagram]
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`account”; (d) “access . . . information in unauthorized ways” including “in an automated
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`way without our express permission”; (e) “violate (or help or encourage others to
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`violate) [Instagram] Terms or [Instagram] policies . . . including . . . the Instagram
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`Community Guidelines[, and] Instagram Platform Policy.”
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`1 Instagram’s Terms and Policies can be accessed at
`https://help.instagram.com/581066165581870.
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`4
`COMPLAINT; DEMAND FOR JURY TRIAL
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`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`21.
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`In addition, Instagram’s Terms require users to “use [Instagram’s]
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`intellectual property and trademarks or similar marks,” only “as expressly permitted by
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`[Instagram’s] Brand Guidelines[2] or with [] prior written permission.” The Brand
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`Guidelines prohibit using the marks in a way that “[m]akes the Instagram brand the
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`most distinctive or prominent feature,” “[i]mplies partnership, sponsorship or
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`endorsement,” or “combine[s] ‘Insta’ or ‘gram’ with [the user’s] own brand.”
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`22.
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`Instagram’s Community Guidelines prohibit users from artificially
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`collecting likes and followers.
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`C. Defendants Diluted Instagram’s Registered Trademarks
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`23.
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`Instagram owns
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`the exclusive
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`rights
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`to
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`the highly distinctive
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`INSTAGRAM word mark, having used the mark in connection with its goods and
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`services as early as 2010.
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`24.
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`In addition to its extensive common law rights, Instagram owns numerous
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`United States registrations for the INSTAGRAM word mark, including, but not limited
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`a) United States Registration Number 4,822,600;
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`b) United States Registration Number 4,146,057;
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`c) United States Registration Number 4,756,754;
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`d) United States Registration Number 4,863,595;
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`e) United States Registration Number 4,863,594;
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`f) United States Registration Number 5,566,030;
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`g) United States Registration Number 4,170,675; and
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`h) United States Registration Number 4,827,509.
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`25. Copies of these registration certificates are attached to this complaint as
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`Exhibit 4. Instagram’s common law and registered trademark rights are collectively
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`referred to as the “Instagram Trademarks.”
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`2 Instagram Brand Guidelines can be found at https://en.instagram-brand.com/.
`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 7 of 58
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`26.
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`In or around April 2017, Plaintiffs learned that on March 2, 2014,
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`Defendants registered and began using the domain name boostgram.com (“Domain
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`Name”), which dilutes the Instagram Trademarks. Exs. 2 and 5.
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`27.
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`Instagram’s use of the Instagram Trademarks in interstate commerce has
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`been extensive, continuous, and substantially exclusive. Instagram has made, and
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`continues to make, a substantial investment of time and effort in the promotion of
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`Instagram and the Instagram Trademarks. Through Instagram’s widespread use of the
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`Instagram Trademarks, extensive and continuous media coverage, the high degree of
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`consumer recognition of the Instagram Trademarks, Instagram’s enormous and loyal
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`user base, its multiple trademark registrations and pending applications, and other
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`factors, the Instagram Trademarks are highly distinctive and enjoy widespread
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`recognition among consumers pre-dating Defendants’ use of
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`the dilutive
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`“Boostgram.”
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`28. As a result of Instagram’s efforts and use, the Instagram Trademarks are
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`famous within the meaning of Section 43 (a) of the Lanham Act, 15 U.S.C. § 1125(c),
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`as they are recognized within the United States and around the world as signifying high
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`quality, authentic goods and services provided by Instagram.
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`29. Since at least August 1, 2015, Defendants have diluted the Instagram
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`Trademarks by referring to their service as “BOOSTGRAM” and listing a “Boostgram”
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`copyright on their website. Exs. 1 and 3.
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`D.
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`Facebook and Instagram’s Enforcement Actions against Defendants
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`30. Since 2017, to protect Instagram users and the Instagram service,
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`Facebook and Instagram have taken multiple enforcement actions against Defendants
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`for violating Instagram’s Terms and Policies, including sending multiple cease and
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`desist letters to Defendants and disabling Facebook and Instagram accounts associated
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`with Defendants and their fake engagement operation.
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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 8 of 58
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`1. May 11, 2017 Cease and Desist
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`31. On May 11, 2017, Facebook and Instagram sent a cease and desist letter to
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`Defendants Heilweil and Lusso for marketing and providing fake engagement services
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`through the boostgram.com website. Ex. 6. At that time, Facebook and Instagram also
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`disabled Instagram and Facebook accounts associated with Defendants.
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`32.
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`In the May 2017 cease and desist letter, Plaintiffs demanded that
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`Defendants stop violating Instagram’s Terms and Policies, including:
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` Misleading Instagram users;
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`
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`Selling APIs (application programming interfaces) or tools to others;
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` Automating interactions between profiles that have no prior relationship;
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`
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`Facilitating or encouraging others to violate Instagram’s [Terms].
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`33. The May 2017 cease and desist letter informed Defendants that Facebook
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`revoked their access to use and access Facebook and Instagram services. Id. The May
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`2017 cease and desist letter also notified Defendants that their service interfered with
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`Facebook and Instagram; and that Defendants’ actions may have violated state and
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`federal laws, including the CFAA and the CCCDAFA. Id.
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`34. On May 13, 2017, in response to the May 2017 cease and desist letter, an
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`attorney representing Defendants Heilweil and Lusso contacted counsel for Facebook
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`and Instagram. In the response, Defendants’ counsel acknowledged that Defendants
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`controlled boostgram.com, stating that Defendants “intended to defend the use and
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`operation” of boostgram.com, and claimed the service did not violate Instagram’s
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`Terms and Policies. Defendants’ counsel also requested the reinstatement of
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`Defendants’ accounts and access to Facebook and Instagram, which Plaintiffs declined.
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`35. After Defendants received the cease and desist letter, Defendants
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`continued to provide the same fake engagement service to artificially inflate likes and
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`followers and only removed the references to the term “automation” on their website
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`promoting the service. Exs. 3 and 7.
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`COMPLAINT; DEMAND FOR JURY TRIAL
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`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`2.
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`August 27, 2019 Cease and Desist
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`36. Despite having their access revoked, between May 16, 2017 and January
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`2, 2019, Defendants created at least seven new Instagram accounts in order to access
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`and use Instagram.
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`37. On August 27, 2019, Plaintiffs sent another cease and desist letter to
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`Defendants and referenced the May 2017 cease and desist letter. Ex. 8.
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`38.
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`In the August 2019 letter, Facebook and Instagram again demanded that
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`Defendants stop abusing Instagram and stop violating Instagram’s Terms and Policies.
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`Plaintiffs reiterated to Defendants that their conduct may have violated the CCCDAFA
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`and the CFAA. Id. Facebook and Instagram again notified Defendants that their access
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`to Facebook and Instagram had been revoked and disabled Defendants’ newly created
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`accounts. Id.
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`39. On August 29, 2019, in response to the August 2019 cease and desist letter,
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`Defendants’ attorney informed counsel for Facebook and Instagram that Defendants did
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`not intend to stop providing fake engagement services or cease the operation of the
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`website boostgram.com.
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`40. On May 26, 2020, Plaintiffs sent a final letter to Defendants’ counsel. In
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`the May 2020 letter, Plaintiffs reiterated that Defendants’ operation violated
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`Instagram’s Terms and Policies and noted that Defendants’ access to Facebook and
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`Instagram had been revoked since May 11, 2017. Defendants failed to respond to the
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`May 2020 letter.
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`41. Despite Plaintiffs’ enforcement efforts, Defendants resumed and continued
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`to access and use the Instagram service.
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`E. Defendants Used an Automated Process and Bots to Artificially
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`Increase the Likes and Followers of Instagram Users and Interfered
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`with Instagram’s Service and Computer Network
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`42. Since at least August 1, 2015 and continuing to the present, Defendants
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`used the website boostgram.com to market and provide fake engagement services for
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`Instagram and conducted financial transactions with their customers. Exs. 1 and 3.
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`43. Beginning no later than July 14, 2020, Defendants used Amazon servers
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`located in San Jose, California to host and operate their fake engagement business.
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`44. Between March 2014 and August 2019, Defendants promoted the
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`boostgram.com website on YouTube, Facebook, and Instagram. For example,
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`Defendants were the only administrators of a Facebook page named “Boostgram,”
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`which Defendants used to promote boostgram.com.
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`45. On or about March 2, 2014, Defendant Lusso created and operated an
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`Instagram account with the vanity name “getboostgram.” In the bio of that Instagram
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`account, Lusso wrote, “Generate Real Followers, Likes, and Comments on your
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`Instagram!”
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`46. Between August 1, 2015 and May 2017, Defendants offered their
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`customers the ability to “Automate [Their] Instagram Activity” and “Get real followers,
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`likes, and comments on [their] Instagram in three clicks.” Ex. 1. Defendants stated
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`their service “automatically interacts with new fans on [their customers’] behalf.” Id.
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`Due to Plaintiffs’ enforcement actions, Defendants removed all references to
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`“automation” from their website but continue to offer fake engagement services. Exs.
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`3 and 7.
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`47. Since June 2017 to present, Defendants have referred to their fake
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`engagement service as “audience targeting” on their website, but nonetheless provided
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`the same service to artificially inflate likes and followers. Id.
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`48. Defendants charged a fixed weekly price for their fake engagement
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`services. As shown below in Figure 1, after a free three-day trial, Defendants charged
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`a weekly price of $31 per user account for their fake engagement service.
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`Figure 1: Boostgram Pricing
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`49. Once a customer registered their Instagram account with Boostgram,
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`Defendants used bots and computer scripts to (a) login to the customer’s Instagram
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`account in an automated manner, and (b) use the Instagram account to automate the
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`delivery of thousands of artificial likes and to follow other Instagram users. This
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`conduct was not authorized by Facebook or Instagram.
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`50. As shown below in Figure 2, as of August 7, 2020, Defendants offer their
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`customers the ability to customize the fake engagement from their Instagram account.
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`And an earlier version of boostgram.com allowed customers to control the rate at which
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`the fake engagement was delivered.
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`Figure 2: Boostgram Dashboard
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`51. For example, between July 16, 2019 and July 19, 2019, after registering an
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`Instagram account on boostgram.com and paying Defendants $31.00, Defendants’ bots
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`and computer scripts used the Instagram account to automate the delivery of over 5,000
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`likes to other Instagram accounts.
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`52. Similarly, between July 23, 2020 and July 30, 2020, after registering an
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`Instagram account on boostgram.com and paying Defendants $31.00, Defendants’
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`automated system used the Instagram account to deliver over 6,500 likes to other
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`Instagram accounts.
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`F. Defendants Unjustly Enriched Themselves and Their Unlawful Acts
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`Have Caused Damage and a Loss to Facebook and Instagram
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`53. Defendants’ continued breaches of Instagram’s Terms and Policies have
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`caused Facebook and Instagram substantial harm. Defendants interfered and continue
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`to interfere with Instagram’s service. Defendants created and continue to create an
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`inauthentic experience for Instagram users who used, viewed, and relied on Defendants’
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`fake engagement.
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`54. Facebook and Instagram have suffered damages attributable to the efforts
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`and resources it has used to address this complaint, investigate, and mitigate
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`Defendants’ illegal conduct, and to identify, analyze, and stop their fraudulent and
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`injurious activities.
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`55. Since at least August 2015, Defendants have unjustly enriched themselves
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`at the expense of Facebook and Instagram in an amount to be determined at trial.
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`Facebook and Instagram are entitled to an accounting by Defendants and a
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`disgorgement of all unlawful profits gained from their unlawful conduct.
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`FIRST CAUSE OF ACTION
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`(Breach of Contract)
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`56. Facebook and Instagram incorporate all preceding paragraphs here.
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`57. Each Defendant created an Instagram account and agreed to Instagram’s
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`Terms and Policies.
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`58. Defendants used their customers’ Instagram accounts to provide fake
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`engagement to other Instagram users. Defendants’ use of those Instagram accounts was
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`also governed by Instagram’s Terms and Policies. Because Defendants’ unlawful
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`business used and targeted Instagram users, each Defendant agreed to Instagram’s
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`Terms and Policies.
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`59. Despite each Defendant’s agreement to Instagram’s Terms and Policies,
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`they repeatedly breached them. Defendants breached Instagram’s Terms and Policies
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`by taking the actions described above, all in an attempt to fraudulently influence other
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`Instagram users and enrich themselves while damaging Facebook and Instagram. Not
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`only did Defendants’ fake engagement service violate Instagram’s Terms and Policies,
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`they encouraged and helped others to violate Instagram’s Terms and Policies, which
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`itself was a violation. Similarly, Defendants violated Instagram’s Terms and Policies
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`because they accessed Instagram and information on Instagram in an unauthorized
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`automated way without Instagram or Facebook’s express permission.
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`60. Defendants also breached Instagram’s Brand Guidelines by improperly
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`using the term “gram” in the boostgram.com domain name.
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`61. Facebook and Instagram have performed all conditions, covenants, and
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`promises required of them in accordance with their agreements with Defendants.
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`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 14 of 58
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`62. Defendants’ many breaches have caused Facebook and Instagram to incur
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`damages in an amount to be determined at trial, but in an amount exceeding $75,000.
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`SECOND CAUSE OF ACTION
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`(California Penal Code § 502)
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`63. Facebook and Instagram incorporate all preceding paragraphs here.
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`64. Since at least May 2017, Defendants have violated California Penal Code
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`§ 502 by accessing Facebook and Instagram and operating their fake engagement
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`service after Facebook and Instagram sent Defendants cease and desist letters, revoked
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`Defendants’ access to Facebook and Instagram, and disabled their user accounts.
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`65. Defendants knowingly accessed and without permission used Facebook
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`and Instagram’s data, computers, computer system, and computer network in order to
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`(A) devise or execute a scheme or artifice to defraud and deceive, and (B) to wrongfully
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`control or obtain money, property, or data, in violation of California Penal Code §
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`502(c)(1). Defendants’ business model is based on deceiving Instagram users and
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`unjustly profiting from it.
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`66. Defendants knowingly and without permission used or caused to be used
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`Facebook and Instagram’s computer services in violation of California Penal Code
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`§ 502(c)(3) by accessing and using Instagram after Facebook and Instagram sent them
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`multiple cease and desist letters revoking their access to Instagram and disabled their
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`user accounts.
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`67. By artificially inflating certain Instagram users’ likes and followers, and
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`impairing the intended operation of Instagram, Defendants knowingly and without
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`permission disrupted or caused the disruption of Facebook and Instagram’s computer
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`services, computers, computer systems, and/or computer networks in violation of
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`California Penal Code § 502(c)(5).
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`68. Defendants knowingly and without permission accessed and caused to be
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`accessed Facebook and Instagram’s computers, computer systems, and/or computer
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`networks in violation of California Penal Code § 502(c)(7). Defendants accessed
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`13
`COMPLAINT; DEMAND FOR JURY TRIAL
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`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 15 of 58
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`Facebook and Instagram’s computer network after Facebook and Instagram disabled
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`their Instagram accounts, and sent multiple cease and desist letters to Defendants
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`revoking their access to the Instagram platform.
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`69. Because Facebook and Instagram suffered damages and a loss as a result
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`of Defendants’ actions and continue to suffer damages as result of Defendants’ actions,
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`Facebook and Instagram are entitled to compensatory damages, in an amount of at least
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`$75,000, attorney fees, and any other amount of damages proven at trial, and injunctive
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`relief under California Penal Code § 502(e)(1) and (2).
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`70. Because Defendants willfully violated California Penal Code § 502, and
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`there is clear and convincing evidence that Defendants committed “fraud” as defined
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`by Section 3294 of the Civil Code, Facebook is entitled to punitive and exemplary
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`damages under California Penal Code § 502(e)(4).
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`THIRD CAUSE OF ACTION
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`(Computer Fraud and Abuse Act, 18 U.S.C. § 1030)
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`71. Facebook and Instagram incorporate all preceding paragraphs here.
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`72. Since at least May 2017, Defendants have violated 18 U.S.C. § 1030 by
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`accessing Facebook and Instagram without authorization in order to operate their fake
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`engagement service. Specifically, Defendants accessed Facebook and Instagram after
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`Plaintiffs sent Defendants multiple cease and desist letters, revoked Defendants’ access
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`to Facebook and Instagram, and disabled their accounts.
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`73. Facebook and Instagram computers and servers are protected computers as
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`defined by 18 U.S.C. § 1030(e)(2).
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`74. Defendants’ access and use of Facebook and Instagram’s computers and
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`computer systems was unauthorized since at least May 2017 because Defendants
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`accessed and used Facebook and Instagram’s computer network after Facebook and
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`Instagram disabled their Instagram accounts and sent multiple cease and desist letters
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`to Defendants revoking their access to and use of the Instagram platform.
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`COMPLAINT; DEMAND FOR JURY TRIAL
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`3:20-cv-07345
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`Los Angeles, California 90071-2627
`550 South Hope Street, Suite 2000
`Hunton Andrews Kurth LLP
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`

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`Case 3:20-cv-07345-SK Document 1 Filed 10/20/20 Page 16 of 58
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`75. Defendants violated 18 U.S.C. § 1030(a)(4) because they knowingly and
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`with intent to defraud accessed Facebook and Instagram protected computers by
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`sending unauthorized commands and signals to Facebook and Instagram computers and
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`by means of such conduct furthered the intended fraud and obtained something of value.
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`Defendants sent the commands to Facebook and Instagram computers to manipulate
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`Instagram’s service by automating the delivery of likes and followers and fraudulently
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`inflating likes and followers of certain Instagram posts and accounts. Defendants did
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`these acts in exchange for profit.
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`76. Defendants violated 18 U.S.C. § 1030(b) by conspiring or attempting to
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`commit the v