Case 4:22-cv-02888-HSG Document 1-1 Filed 05/16/22 Page 1 of 27
`Case 4:22-cv-02888-HSG Document1-1 Filed 05/16/22 Page 1 of 27
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`EXHIBIT A
`EXHIBIT A
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`Case 4:22-cv-02888-HSG Document 1-1 Filed 05/16/22 Page 2 of 27
`
`Service of Process
`Transmittal
`04/15/2022
`CT Log Number 541415942
`
`TO:
`
`RE:
`
`FOR:
`
`LGS SOP
`APPLE INC.
`ONE APPLE PARK WAY
`CUPERTINO, CA 95014-0642
`
`Process Served in California
`
`Apple Inc.  (Domestic State: CA)
`
`ENCLOSED ARE COPIES OF LEGAL PROCESS RECEIVED BY THE STATUTORY AGENT OF THE ABOVE COMPANY AS FOLLOWS:
`
`TITLE OF ACTION:
`
`LUCILA BAPTISTE, individually and on behalf of all others similarly situated vs.
`APPLE INC.
`
`DOCUMENT(S) SERVED:
`
`Summons, Complaint, Attachment(s), Order, Notice
`
`COURT/AGENCY:
`
`Santa Clara County Superior Court of California, CA
`Case # 22CV396771
`
`NATURE OF ACTION:
`
`Violation of the New York Video Consumer Privacy Act
`
`ON WHOM PROCESS WAS SERVED:
`
`C T Corporation System, GLENDALE, CA
`
`DATE AND HOUR OF SERVICE:
`
`By Process Server on 04/15/2022 at 01:21
`
`JURISDICTION SERVED :
`
`California
`
`APPEARANCE OR ANSWER DUE:
`
`Within 30 days after service
`
`ATTORNEY(S) / SENDER(S):
`
`Joel D. Smith
`Bursor & Fisher, P.A.
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`925-300-4455
`
`ACTION ITEMS:
`
`CT has retained the current log, Retain Date: 04/15/2022, Expected Purge Date:
`04/20/2022
`
`Image SOP
`
`Email Notification,  Colleen Brown  colleen_brown@apple.com
`
`Email Notification,  Heather Moser  hmoser@apple.com
`
`Email Notification,  Tim O'Neil  toneil@apple.com
`
`Email Notification,  Charstie Wheelock  wheelock@apple.com
`
`Email Notification,  Erik Floyd  efloyd@apple.com
`
`Email Notification,  Ryan Moran  rmoran@apple.com
`
`Email Notification,  Jennifer Brown  jennifer_brown@apple.com
`
`Page 1 of  3 / JB
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`

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`Case 4:22-cv-02888-HSG Document 1-1 Filed 05/16/22 Page 3 of 27
`
`Service of Process
`Transmittal
`04/15/2022
`CT Log Number 541415942
`
`TO:
`
`RE:
`
`FOR:
`
`LGS SOP
`APPLE INC.
`ONE APPLE PARK WAY
`CUPERTINO, CA 95014-0642
`
`Process Served in California
`
`Apple Inc.  (Domestic State: CA)
`
`Email Notification,  Susan Guarino  sguarino@apple.com
`
`Email Notification,  Andrew Farthing  afarthing@apple.com
`
`Email Notification,  Scott Murray  scott_murray@apple.com
`
`Email Notification,  Lisa Olle  olle@apple.com
`
`Email Notification,  Maya Kumar  maya_kumar@apple.com
`
`Email Notification,  Jessica Hannah  jessica_hannah@apple.com
`
`Email Notification,  Stephanie Fine  stephanie_fine@apple.com
`
`Email Notification,  Amy Handler  ahandler@apple.com
`
`Email Notification,  Gabe Zeldin  gzeldin@apple.com
`
`Email Notification,  Benjamin Huh  bhuh@apple.com
`
`Email Notification,  Aaron Huang  aaron_y_huang@apple.com
`
`Email Notification,  James Wiley, Jr.  jwileyjr@apple.com
`
`Email Notification,  Jesse Koehler  jesse_koehler@apple.com
`
`Email Notification,  Andrew Stein  andrew_stein@apple.com
`
`Email Notification,  Matt Clements  matthew_clements@apple.com
`
`Email Notification,  Natalie Pous  npous@apple.com
`
`Email Notification,  Mara Selfridge  mselfridge@apple.com
`
`Email Notification,  Amy Walters  amy_walters@apple.com
`
`Email Notification,  Robin Goldberg  robin_goldberg@apple.com
`
`Email Notification,  Garrett Sakimae  gsakimae@apple.com
`
`Email Notification,  LGS SOP  lgsopssop@group.apple.com
`
`Email Notification,  Audrey Stano  a_stano@apple.com
`
`Email Notification,  Lloyd Keith II  fkeith@apple.com
`
`Page 2 of  3 / JB
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`

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`Case 4:22-cv-02888-HSG Document 1-1 Filed 05/16/22 Page 4 of 27
`
`Service of Process
`Transmittal
`04/15/2022
`CT Log Number 541415942
`
`TO:
`
`RE:
`
`FOR:
`
`LGS SOP
`APPLE INC.
`ONE APPLE PARK WAY
`CUPERTINO, CA 95014-0642
`
`Process Served in California
`
`Apple Inc.  (Domestic State: CA)
`
`Email Notification,  Colette Mayer  colette.mayer@apple.com
`
`Email Notification,  Anita Bamshad  abamshad@apple.com
`
`Email Notification,  Jack Pararas  jpararas@apple.com
`
`Email Notification,  Tucker Terhufen  tterhufen@apple.com
`
`Email Notification,  Jenny Liu  jianing_liu@apple.com
`
`REGISTERED AGENT ADDRESS:
`
`C T Corporation System
`330 N BRAND BLVD
`STE 700
`GLENDALE, CA 91203
`877-564-7529
`MajorAccountTeam2@wolterskluwer.com
`The information contained in this Transmittal is provided by CT for quick reference only. It does not constitute a legal opinion, and should not otherwise be
`relied on, as to the nature of action, the amount of damages, the answer date, or any other information contained in the included documents. The recipient(s)
`of this form is responsible for reviewing and interpreting the included documents and taking appropriate action, including consulting with its legal and other
`advisors as necessary. CT disclaims all liability for the information contained in this form, including for any omissions or inaccuracies that may be contained
`therein.
`
`Page 3 of  3 / JB
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`

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`Wolters Kluwer
`
`PROCESS SERVER DELIVERY DETAILS
`
`Date:
`Server Name:
`
`Entity Served
`
`Case Number
`
`Jurisdiction
`
`10
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`APPLE INC.
`
`22c v-39 6771
`
`CA
`
`Fri, Apr 15, 2022
`Douglas Forrest
`
`Inserts
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`11IH
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`

`

`SUM-100
`
`SUMMONS
`(CITACION JUDICIAL)
`
`NOTICE TO DEFENDANT:
`(AVISO AL DEMANDADO):
`APPLE INC.
`
`YOU ARE BEING SUED BY PLAINTIFF:
`(LO ESTA DEMANDANDO EL DEMANDANTE):
`LUCILA BAPTISTE, individually and on behalf of all others similarly situated,
`
`FOR COURT USE ONLY
`(SOLO PARA USO DE LA CORTE)
`E-FILED
`3/30/2022 5:02 PM
`Clerk of Court
`Superior Court of CA,
`County of Santa Clara
`22CV396771
`Reviewed By: P. Hernandez
`Envelope: 8641419
`NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
`below.
`You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
`served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
`case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
`Online Self-Help Center (www.courtinfo.ca.gov/selthelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the
`court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may
`be taken without further waming from the court.
`There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
`referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
`these nonprofit groups at the California Legal Services Web site (www.lawhelpcalifomia.org), the California Courts Online Self-Help Center
`(www.courtinfo.ca.goviselthelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and .
`costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.
`iAVISO! Lo han demandado. Si no responde dentro de 30 dies, la corte puede decidir en su contra sin escuchar su version. Lea la informaciOn a
`continuacion.
`Tiene 30 DIAS DE CALENDARIO despues de que le entreguen esta citaciOn y papeles legates para presentar una respuesta por escrito en esta
`corte y hacer que se entregue una copia al demandante. Una carte o una Ilamada telefOnica no lo protegen. Su respuesta por escrito tiene que estar
`en formato legal comecto si desea que procesen su caso en la code. Es posible que haya un fonnulatio que usted pueda usar para su respuesta.
`Puede encontrar estos formularios de la corte y mas informacion en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la
`biblioteca de leyes de su condado o en la code que le quede Inas cerca. Si no puede pager la cuota de presentacion, pida al secretario de la carte que
`le dé un formulario de exencion de pago de cuotas. Si no presenta su respuesta a tiempo, puede perder el caso por incumplimiento y la corte le podra
`guitar su sue/do, dinero y bienes sin mas advertencia.
`Hay otros requisitos legales. Es recomendable que Ilame a un abogado inmediatamente. Si no conoce a un abogado, puede Ilamar a un servicio de
`remisiOn a abogados. Si no puede pager a un abogado, es posible que cumpla con los requisitos para obtener servicios legates gratuitos de un
`pro grama de servicios legates sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services,
`(www.lawhelpcalifomia.org), en el Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) o poniendose en contacto con la code o el
`colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre
`cualquier recuperaciOn de $10,000 6 mas de valor recibida mediante un acuerulo o una concesiOn de arbitraje en un caso de derecho civil. Tiene que
`pagar el gravamen de la carte antes de que la code pueda desechar el caso.
`The name and address of the court is:
`(El nombre y direcci6n de la corte es):
`Superior Court of the State of California, County of Santa Clara
`191 North First Street San Jose, CA 95113
`The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombre, la direcciOn y el nOmero
`de telEfono del abogado del demandante, o del demandante que no tiene abogado, es):
`Joel D. Smith, Bursor & Fisher, P.A., 1990 N. California Blvd.,Suite 940 Walnut Creek, CA 94596, Tel: (925) 300-4455
`DATE:
`Clerk by
`'
`P• Hernandez
`(Fecha) 3/30/2022 5:02 PM
`(Secretano) •
`(For proof of service of this summons, use Proof of Service of Summons (form POS-010).)
`(Para prueba de entrega de esta citation use el formulario Proof of Service of Summons, (POS-010)).
`NOTICE TO THE PERSON SERVED: You are served
`
`CASE NUMBER: (NOmero del Caso):
`22CV396771
`
`Clerk of Court
`
`, Deputy
`(Adjunto)
`
`1. fl 1 as an individual defendant.
`2. F-1 as the person sued under the fictitious name of (specify):
`
`3. 1-1 on behalf of (specify): Apple, Inc.
`
`I—I CCP 416.60 (minor)
`under: I—I CCP 416.10 (corporation)
`I-1 CCP 416.70 (conservatee)
` CCP 416.20 (defunct corporation)
`1-1 CCP 416.40 (association or partnership) I—I CCP 416.90 (authorized person)
`I-1 other (specify):
`4. [-1 by personal delivery on (date):
`SUMMONS
`
`Page 1 oil
`
`Code of Civil Procedure §§ 412.20, 465
`www.courts.ca.gov
`
`Form Adopted for Mandatory Use
`Judicial Council of California
`SUM-100 [Rev. July 1,2009]
`
`or your protection and—plivacy, please press th—e—Clear
`This Form button after you have printed the form.
`
`Print this form
`
`Save this form '
`
`iClear this form
`
`

`

`E-FILED
`3/30/2022 5:02 PM
`Clerk of Court
`Superior Court of CA,
`County of Santa Clara
`22CV396771
`Reviewed By: P. Hernandez
`
`BURSOR & FISHER, P.A.
`L. Timothy Fisher (State Bar No. 191626)
`Joel D. Smith (State Bar No. 244902)
`1990 North California Boulevard, Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`E-Mail: ltfisher@bursor.com
`jsmith@bursor.com
`
`BURSOR & FISHER, P.A.
`Philip L. Fraietta (Pro Hac Vice Forthcoming)
`888 Seventh Avenue
`New York, NY 10019
`Telephone: (646) 837-7150
`E-Mail: pfraietta@bursor.com
`
`Attorneys for Plaintiff
`
`SUPERIOR COURT OF THE STATE OF CALIFORNIA
`
`FOR THE COUNTY OF SANTA CLARA
`
`Case No.
`
`22CV396771
`
`CLASS ACTION
`
`COMPLAINT
`
`LUCILA BAPTISTE, individually and on
`behalf of all others similarly situated,
`
`V.
`
`APPLE INC.
`
`Plaintiff,
`
`Defendant.
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`COMPLAINT - JURY TRIAL DEMANDED
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`Plaintiff Lucila Baptiste ("Plaintiff'), individually and on behalf of all others similarly
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`situated, by and through her attorneys, makes the following allegations pursuant to the investigation
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`of her counsel and based upon information and belief, except as to allegations specifically
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`pertaining to herself, which are based on personal knowledge.
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`NATURE OF THE ACTION
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`1.
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`This is a class action suit brought against Defendant Apple Inc. ("Apple" or
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`"Defendant") for its unlawful retention of Plaintiffs and its other New York customers' personally
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`identifiable information, including their names, addresses, credit card information, and video rental
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`history in violation of the New York Video Consumer Privacy Act, N.Y. General Business Law
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`("GBL") §§ 670-675 ("NYVCPA").
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`2.
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`Apple is a leading technology company that rents videos for streaming to consumers
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`through its iTunes platform.
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`3.
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`Apple maintains a digital record system that details the rental histories of every
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`customer that rents a video from iTunes. Apple also maintains records containing its customers'
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`billing addresses.
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`4.
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`As a result, Apple maintains a digital dossier on millions of consumers throughout
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`New York. These records contain not only its customers' credit card numbers and billing/contact
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`information, but also a detailed account of its customers' video rental histories.
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`5.
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`In recognition of the fact that companies who rent digital media — like Apple — must
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`collect certain confidential and sensitive consumer information with respect to personal viewing
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`habits, the NYVCPA requires such companies to "destroy personally identifiable information as
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`soon as practicable." GBL § 673(5).
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`6.
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`However, in direct contravention of the protections afforded to New York consumers
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`under the NYVCPA, Apple maintains and stores its customers' names, credit card numbers, billing
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`and contact information, and most importantly, sensitive video rental histories for an indefinite
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`period of time.
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`7.
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`Accordingly, Apple has knowingly retained the "personally identifiable information"
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`and sensitive video rental histories of millions of New York consumers, in violation of the
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`COMPLAINT — JURY TRIAL DEMANDED
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`NYVCPA.
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`8.
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`Plaintiff brings this action on behalf of herself and a class of all people in New York
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`whose personally identifiable information and sensitive video rental histories were retained by
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`Apple.
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`THE PARTIES
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`9.
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`Plaintiff Lucila Baptiste is domiciled in New York and lives in Brooklyn, New York.
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`10.
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`Ms. Baptiste has an iTunes account, and has rented videos through her iTunes
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`account.
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`11.
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`On April 11, 2020, Ms. Baptiste rented a movie from Apple, through iTunes.
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`12.
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`In connection with that rental, Apple collected Ms. Baptiste's name, address, and
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`credit card information.
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`13.
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`As of March 18, 2022, Ms. Baptiste iTunes's account history still displays the title of
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`the video she rented, as well as the date she rented it and the price she paid for it.
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`14.
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`Defendant Apple Inc. is a California corporation with its headquarters in Cupertino,
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`California. Apple does business throughout California and New York.
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`JURISDICTION AND VENUE
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`15.
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`This Court has subject matter jurisdiction over this class action. This Court has
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`personal jurisdiction over the parties because Defendant, at all times relevant hereto, has
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`systematically and continually conducted, and continues to conduct, business in this State.
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`16.
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`Venue is proper in this Court pursuant to Civil Code §§ 395 and 395.5. Defendant
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`conducts business in this County and throughout the State of California and its principal place of
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`business is in this County.
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`STATEMENT OF FACTS
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`The Federal Video Privacy Protection Act and Digital Dossiers
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`17.
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`The desire to keep video rental history records private led Congress to enact the
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`Video Privacy Protection Act of 1988, 18 U.S.C. § 2710 ("VPPA"). Inspired by the release of
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`video rental records of Supreme Court Justice Nominee Robert H. Bork and his family, Congress
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`promulgated the Act to explicitly preserve United States citizens' right to privacy in their video
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`COMPLAINT - JURY TRIAL DEMANDED
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`rental histories.
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`18.
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`When the VPPA was introduced, Senator Paul Simon noted that:
`There is no denying that the computer age has revolutionized our
`world. Over the past 20 years we have seen remarkable changes in
`the way each one of us goes about our lives. Our children learn
`through computers. We bank by machine. We watch movies in
`our living rooms. These technological innovations are exciting and
`as a nation we should be proud of the accomplishments we have
`made. Yet, as we continue to move ahead, we must protect time
`honored values that are so central to this society, particularly our
`right to privacy. The advent of the computer means not only that
`we can be more efficient than ever before, but that we have the
`ability to be more intrusive than ever before. Every day Americans
`are forced to provide to businesses and others personal
`information without having any control over where that
`information goes. These records are a window into our loves,
`• likes, and dislikes.
`
`S. Rep. No. 100-599 at 7-8 (1988) (emphasis added).
`
`19.
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`One of the original drafters of the VPPA, Senator Patrick Leahy, remarked that "the
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`trail of information generated by every transaction is now recorded and stored in sophisticated
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`record-keeping systems is a new, more subtle and pervasive form of surveillance." S. Rep. No.
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`100-599 at 8 (1988).
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`20.
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`In recognition of the sensitivity of the video renting information, the VPPA requires
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`video tape service providers, like Apple, to destroy "personally identifiable information as soon as
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`practicable, but no later than one year from the date the information is no longer necessary for the
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`purpose for which it was collected ... ." 18 U.S.C. § 2710(e).
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`21.
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`However, the VPPA differs from the NYVCPA in that it only provides a private
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`right of action for the wrongful disclosure of personally identifiable information, and not failure to
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`destroy it. See 18 U.S.C. § 2710(c) (providing private right of action for a "violation of this
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`section" immediately after the disclosure prohibitions in section (b), but not listing the destruction
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`requirements until section (e)).
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`The New York Video Consumer Privacy Act
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`22. On the heels of Congress having passed the VPPA, the New York Legislature passed
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`the NYVCPA in 1993 "to protect the personal privacy of individuals and their families who rent
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`COMPLAINT - JURY TRIAL DEMANDED
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`video cassette tapes and movies and similar audio visual materials." GBL § 671.
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`23.
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`In his sponsor memorandum, Assemblyman Anthony J. Genovesi noted:
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`Video lists have enormous commercial utility, which adds to the
`likelihood that an individual's entertainment preferences will be
`disclosed. Mailing lists are easily devised based on categorizing
`an individual's viewing habits as documented by video retail
`establishments' records. For example, catalog companies and
`direct mail sales companies are naturally interested in obtaining
`lists of people who rent children's films, physical fitness films,
`adventure films, or adult films.
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`Exhibit A, Sponsor Memo at 3.
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`24.
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`In furtherance of those concerns, like the VPPA, the NYVCPA requires that video
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`tape service provides, like Apple, "destroy personally identifiable information as soon as
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`practicable, but no later than one year from the date the information is no longer necessary for the
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`purpose for which it was collected ... ." GBL § 673(5).
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`25.
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`However, unlike the VPPA, the NYVCPA explicitly provides a private right of
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`action to enforce that statutory requirement. See GBL § 675(1).
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`26.
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`Specifically, under the NYVCPA, the private right of action is located at the end of
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`the Act and extends to all "violation[s] of this article," which refers to Article 32 of the General
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`Business Law, i.e., the NYVCPA.
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`27.
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`This deviation from the VPPA is not an accident. Indeed, Assemblyman Genovesi
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`specifically noted in his sponsor memorandum that due to the shortcomings of the VPPA, "a
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`separate state law is needed in New York to give her citizens meaningful protection from unwanted
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`intrusions." Ex. A, Sponsor Memo at 3.
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`A Brief Overview of Renting Videos Through iTunes
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`28.
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`iTunes allows consumers to rent videos to instantly stream on their devices.
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`29.
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`Consumers must first create an account with iTunes which requires them to input
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`their name, date of birth, email address, billing address, and credit card information.
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`30.
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`After creating an iTunes account, renting a video through iTunes is a three-step
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`process. First, the customer searches iTunes's selections by using its interface. Second, after the
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`COMPLAINT - JURY TRIAL DEMANDED
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`customer has identified a video that she wishes to rent, the customer clicks that video and then
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`clicks the "rent" button, which prompts her to enter her iTunes account username and password.
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`Third, the customer enters her iTunes account username and password and clicks "rent," thereby
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`charging the credit card on file with her iTunes account and renting the video.
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`31.
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`Once the video is rented it is accessible to the customer in the "rented" section of the
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`iTunes interface.
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`32.
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`The customer must watch the video within 30 days of the rental and has 48 hours
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`from first viewing the video to complete it.
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`33.
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`After 30 days of the rental, or after 48 hours from first viewing the video, whichever
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`comes earlier, the video is no longer accessible to the customer.
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`34.
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`At no time does Apple obtain the consent of its customers to retain their personally
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`identifiable information.
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`35.
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`Apple requires customers to use only credit or debit cards to rent videos from iTunes.
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`36.
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`iTunes's terms and conditions provide that all transactions are final.
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`37.
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`Apple will only offer a refund for a video rental if technical problems prevent or
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`unreasonably delay delivery of the video, and only if requested by the customer within 90 days of
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`the rental.
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`Apple Systematically Violates the NYVCPA
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`38.
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`With every rental transaction, Apple collects, stores and maintains its customers'
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`name, credit and debit card information, billing address, and video rental history for an indefinite
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`period of time.
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`39.
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`The video rental histories that Apple stores include every video that the customer has
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`ever rented from Apple through iTunes, as well as information which identifies the customer as
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`having requested or obtained specific video materials or services.
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`40.
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`In light of the fact that its customers' rental transactions are necessarily completed
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`within 30 days from the date of rental, and given Apple's policy not to provide refunds for charges
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`that are over 90 days old, Apple systematically violates the NYVCPA by storing and maintaining its
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`customers' "personally identifiable information," as that term is defined by the statutes, for longer
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`COMPLAINT - JURY TRIAL DEMANDED
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`than 90 days.
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`CLASS ACTION ALLEGATIONS
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`41.
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`Plaintiff seeks to represent a class of all New York residents who (a) rented a video
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`from Apple through iTunes wherein (b) Apple retained for more than 90 days their personally
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`identifiable information, including information that identifies the person as having requested or
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`obtained specific video materials or services, and (c) without their consent (the "Class").
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`42.
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`Members of the Class are so numerous that their individual joinder herein is
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`impracticable. On information and belief, members of the Class number in the millions. The
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`precise number of Class members and their identities are unknown to Plaintiff at this time but may
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`be determined through discovery. Class members may be notified of the pendency of this action by
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`mail and/or publication through the distribution records of Defendant.
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`43. Common questions of law and fact exist as to all Class members and predominate
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`over questions affecting only individual Class members. Common legal and factual questions
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`include, but are not limited to, whether Defendant has violated the NYVCPA by storing and
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`maintaining personally identifiable information, including video rental histories for longer than 90
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`days; and whether Class members are entitled to statutory damages for the aforementioned
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`violations.
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`44.
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`The claims of the named Plaintiff are typical of the claims of the Class because the
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`named Plaintiff, like all other Class members, rented videos from Apple through iTunes and had her
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`personally identifiable information, including video rental histories stored and maintained by Apple
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`for longer than 90 days.
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`45.
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`Plaintiff is an adequate representative of the Class because her interests do not
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`conflict with the interests of the Class members she seeks to represent, she has retained competent
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`counsel experienced in prosecuting class actions, and she intends to prosecute this action
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`vigorously. The interests of Class members will be fairly and adequately protected by Plaintiff and
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`her counsel.
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`46.
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`The class mechanism is superior to other available means for the fair and efficient
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`adjudication of the claims of Class members. Each individual Class member may lack the resources
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`COMPLAINT- JURY TRIAL DEMANDED
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`to undergo the burden and expense of individual prosecution of the complex and extensive litigation
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`necessary to establish Defendant's liability. Individualized litigation increases the delay and
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`expense to all parties and multiplies the burden on the judicial system presented by the complex
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`legal and factual issues of this case. Individualized litigation also presents a potential for
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`inconsistent or contradictory judgments. In contrast, the class action device presents far fewer
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`management difficulties and provides the benefits of single adjudication, economy of scale, and
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`comprehensive supervision by a single court on the issue of Defendant's liability. Class treatment
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`of the liability issues will ensure that all claims and claimants are before this Court for consistent
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`adjudication of the liability issues.
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`47.
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`Plaintiff brings her claims in this action individually and on behalf of members of the
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`Class against Defendant.
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`COUNT I
`Violation of the New York Video Consumer Privacy Act,
`N.Y. GBL §§ 670-675
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`48.
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`Plaintiff repeats the allegations contained in the foregoing paragraphs as if fully set
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`forth herein.
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`49.
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`Plaintiff brings this claim individually and on behalf of the members of the proposed
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`Class against Defendant.
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`50.
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`Apple is a "video tape service provider" as defined by the NYVCPA, because it
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`"[e]nage[s] in the business of rental of prerecorded video cassette tapes or similar audio visual
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`materials." GBL § 672(4).
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`51.
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`Plaintiff is a "consumer" as defined by the NYVCPA, because she is a "renter ... of
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`goods or services from a video tape service provider." GBL § 672(1).
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`52.
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`The NYVCPA requires video tape service providers "destroy personally identifiable
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`information as soon as practicable, but no later than one year from the date the information is no
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`longer necessary for the purpose for which it was collected ... ." GBL § 673(5).
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`53.
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`The NYVCPA defines "personally identifiable information" as "any information
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`which identifies a person as having requested or obtained specific video materials or services from a
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`COMPLAINT- JURY TRIAL DEMANDED
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`video tape service provider." GBL § 672(1).
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`54.
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`As Apple's customer video rental transactions are completed within 30 days of the
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`rental (as the video is no longer accessible to the customer after that time), and Apple does not
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`provide refunds for charges that are more than 90 days old, it is not necessary for Apple to store and
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`maintain Plaintiff' and the Class's personally identifiable information and personal video rental
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`histories for longer than 90 days.
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`55.
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`Accordingly, and in violation of GBL § 673(5), Apple has failed to destroy its
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`customers' personally identifiable information as soon as practicable after it was no longer
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`necessary for the purpose for which it was collected.
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`56.
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`Nonetheless, Apple has stored and maintained Plaintiff's personally identifiable
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`information, as that term is defined by the NYVCPA, for well over 90 days since she rented a video
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`from Apple, through iTunes, on April 11, 2020.
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`57.
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`Further, Apple does not have a policy in place to timely destroy "personally
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`identifiable information," as required by the NYVCPA.
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`58.
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`Pursuant to GBL § 675, Plaintiff and the Class have been injured by the violations of
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`GBL § 673(5), and seek damages of not less than $500 each, regardless of the amount of actual
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`damage proved, plus costs, disbursements, and reasonable attorneys' fees.
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`PRAYER FOR RELIEF
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`WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated, seek
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`judgment against Defendant, as follows:
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`a.
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`b.
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`Determining that this action is a proper class action;
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`For an order certifying the Class, naming Plaintiff as the representative of the Class,
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`and naming Plaintiff's attorneys as Class Counsel to represent the Class;
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`c.
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`For an order declaring that the Defendant's conduct violates the statutes referenced
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`herein;
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`d.
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`e.
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`For an order finding in favor of Plaintiff and the Class on all counts asserted herein;
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`For statutory damages in amounts to be determined by the Court and/or jury;
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`COMPLAINT- JURY TRIAL DEMANDED
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`f.
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`g.
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`For prejudgment interest on all amounts awarded;
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`For an order awarding Plaintiff and the Class their reasonable attorneys' fees and
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`disbursements, expenses, and costs of suit.
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`DEMAND FOR TRIAL BY JURY
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`Plaintiff hereby demand a trial by jury of all issues so triable.
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`Dated: March 30, 2022
`
`Respectfully submitted,
`
`BURSOR & FISHER, P.A.
`
`By: /s/ Joel D. Smith
`Joel D. Smith
`
`L. Timothy Fisher (State Bar No. 191626)
`Joel D. Smith (State Bar No. 244902)
`1990 North California Blvd., Suite 940
`Walnut Creek, CA 94596
`Telephone: (925) 300-4455
`Facsimile: (925) 407-2700
`Email: ltfisher@bursor.com
`jsmith@bursor.com
`
`BURSOR & FISHER, P.A.
`Philip L. Fraietta (Pro Hac Vice Forthcoming)
`888 Seventh Avenue
`New York, NY 10019
`Telephone: (646) 837-7150
`E-Mail: pfraietta@bursor.com
`
`Attorneys for Plaintff
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`COMPLAINT - JURY TRIAL DEMANDED
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`Case 4:22-cv-02888-HSG Documenti1-1 Filed 05/16/22 Page 17 of 27
`
`EXHIBIT A
`EXHIBIT A
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`

`

`69°
`
`Assemblyman Anthony J. Genovesi
`New York State Assembly
`MEMORANDUM IN SUPPORT OF LEGISLATION
`submitted in accordance with Assembly Rule III, section 1 (e)
`
`7d9-
`
`Bill Number: Assembly 5904 Senate
`
`Memo on original draft
`
`Memo on amended bill
`
`Sponsors: Assemblymembers
`
`Anthony J. Genovesi
`
`Senators
`
`TITLE:
`
`An act to amend the general business law, in relation to protecting the
`privacy of consumers renting or purchasing video cassette tapes or similar
`audio visual materials.
`
`PURPOSE OR GENERAL IDEA OF BILL:
`
`The purpose of this bill is to protect the personal privacy of consumers
`who purchase or rent prerecorded video cassette tapes or similar
`audiovisual materials by prohibiting public disclosure of information that
`could reveal the identity of such individuals except with the consumer's
`consent or pursuant to certain exceptions, such as a court order.
`Exceptions to the prohibition are designed to avoid unreasonably
`restricting the ability of video retail establishments to retain such
`information as is needed to carry on their businesses.
`
`SUMMARY OF SPECIFIC PROVISIONS:
`
`This bill would add a new Article 31 to the General Business Law, entitled
`the Video Consumer Privacy Act. The bill would prohibit video tape service
`providers from disclosing to any person personally identifiable information
`concerning the consumer, including information which identifies a person as
`having rented or obtained specific video materials or services from a video
`tape service provider.
`
`Exceptions to the general disclosure prohibition would be made where the
`disclosure is: to the consumer or is made with the informed, written
`consent of the consumer given at the time the disclosure is sought; to any
`person if