Case 7:21-cv-10181-KMK Document 1 Filed 11/30/21 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`PEDRO CARO RIVERA, individually and on
`behalf of all others similarly situated,
`Plaintiff,
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`v.
`MASTERCARD INC.,
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`Defendant.
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`Case No. __________
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`CLASS ACTION COMPLAINT
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`(JURY TRIAL DEMANDED)
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`Plaintiff Pedro Caro Rivera, individually and on behalf of all others similarly situated, by
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`and through his attorneys, makes the following allegations pursuant to the investigation of his
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`counsel and based upon information and belief, except as to allegations specifically pertaining to
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`himself and his counsel, which are based on personal knowledge.
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`INTRODUCTION
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`1.
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`Unsatisfied with interchange fee revenue alone, Defendant Mastercard Inc.
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`(“Mastercard”) sold, rented, and continues to sell and rent, mailing lists containing Plaintiff’s and
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`all of its other customers’ names and addresses (as well as age, gender, religion, and purchase-
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`related data, and information pertaining to their use of MasterCard cards to make purchases
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`(hereinafter, “Personal Identifying Transactional Data”)) on the open market to data miners, data
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`aggregators, data appenders, data cooperatives, list brokers, aggressive marketing companies, and
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`various other parties interested in purchasing them. Prior to monetizing Plaintiff’s and its other
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`customers’ Personal Identifying Transactional Data in this way, Mastercard did not ask for much
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`less obtain consent from any of these individuals.
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`2.
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`Documented evidence confirms these facts. For example, Mastercard, either
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`directly or through one or more intermediaries acting on its behalf and at its direction (including
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`through NextMark and/or one or more “list manager” and/or “list broker”), and during the time
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`period relevant to this action, sold and rented to various parties the mailing list titled
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`“MASTERCARD® AUDIENCES Mailing List”, which contains the names, addresses, and other
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`Personal Identifying Transactional Data of all individuals who used MasterCard cards to make
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`purchases (including the types of purchases made), including Plaintiff and each member of the
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`Class, at a base price of “$110/M [per thousand],” (i.e., 11 cents apiece), as shown in pertinent part
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`in the screenshot below from list broker NextMark, Inc.’s website:
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`See Exhibit A hereto.
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`3.
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`Puerto Rico’s Right of Publicity Act clearly prohibits what Mastercard has done.
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`See P.R. LAWS tit. 32, §3151 (2011), et seq. (the “PRRPA”). Generally speaking, the PRRPA
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`prohibits using a person’s name or likeness on or in connection with a product, good, piece of
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`merchandise, or a service without the person’s prior consent. Mastercard directly violated the
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`PRRPA by selling and renting, on the open market to any member of the public interested in
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`purchasing, mailing lists that contained Plaintiff’s and all of its other Puerto Rico customers’
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`names, addresses, and other Personal Identifying Transactional Data.
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`4.
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`Mastercard’s practices of monetizing its customers’ names and likenesses for
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`commercial purposes without their consent is not only unlawful, but also dangerous because it
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`allows any member of the public willing to purchase or rent this data to target particular customers,
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`including vulnerable members of society, using their identities, interests and other demographic
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`data. For example, anyone could buy or rent a list that contains the names, addresses, and other
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`Personal Identifying Transactional Data of all Christian women over the age of 50 who reside in
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`Puerto Rico, earn over $100,000 per year, and purchased a plane ticket with a MasterCard in the
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`past six months. Such a list is available for sale or rental on the open market for approximately
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`$165 per thousand customers listed.
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`5.
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`So, while Mastercard profits handsomely from the use of its customers’ names,
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`likenesses, and other personal identifying attributes in this way, it does so at the expense of its
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`customers’ statutory rights of publicity. Accordingly, Plaintiff brings this Class Action Complaint
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`against Mastercard for its plainly unlawful use of its Puerto Rico customers’ names and likenesses
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`in reckless disregard of Plaintiff’s and the Class’ statutorily protected rights under the PRRPA.
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`PARTIES
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`6.
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`Plaintiff is, and at all times relevant to this action has been, a living, natural person
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`and a domiciled resident and citizen of Puerto Rico. During the time period relevant to this action,
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`Plaintiff used a MasterCard card (or cards) to make purchases while residing in, being a citizen of,
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`and physically being present in, Puerto Rico.
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`7.
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`Defendant Mastercard Inc. is a Delaware corporation that maintains its
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`headquarters and principal place of business in Purchase, New York. Mastercard is a technology
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`company in the global payments industry that enables the use of electronic forms of payment,
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`including credit and debit cards, by consumers, financial institutions, merchants, governments,
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`digital partners, businesses and other organizations worldwide.
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`JURISDICTION AND VENUE
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`8.
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`This Court has subject matter jurisdiction over this civil action pursuant to 28
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`U.S.C. §1332(d) because there are more than 100 class members and the aggregate amount in
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`controversy exceeds $5,000,000, exclusive of interest, fees, and costs, and at least one Class
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`member is a citizen of a state different from Mastercard.
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`9.
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`The Court has personal jurisdiction over Mastercard because Mastercard maintains
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`its corporate headquarters and principal place of business in Purchase, New York.
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`10.
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`Venue is proper in this District pursuant to 28 U.S.C. §1391 because Mastercard is
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`subject to personal jurisdiction in this judicial District, because Mastercard resides in this judicial
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`District, and because a substantial part of the events giving rise to Plaintiff’s claims took place
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`within this judicial District.
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`THE PRRPA
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`11.
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`The PRRPA prohibits any person from, inter alia, using an individual’s name or
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`likeness, in any manner, on or in a product, good, merchandise or service. See. Specifically, the
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`PRRPA states, in pertinent part:
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`Any natural or juridical person who uses another's likeness for commercial, trade,
`or advertising purposes without the previous consent of said person, the person who
`possesses a license for said likeness, his/her heirs if the person is deceased, or the
`authorized agent of any of the forgoing shall be liable for damages.
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`P.R. LAWS tit. 32, §3152 (2011). The term “likeness” means a “[n]ame, photograph, portrait,
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`voice, signature, attribute or any representation of a person through which an average observer or
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`listener may identify the same, produced using any reproduction procedure or technique.” P.R.
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`LAWS tit. 32, §3151(c) (2011). “Commercial purpose” is defined as “[t]he use of a person’s
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`likeness in connection with an advertisement, offer, or sale of a product, merchandise, good or
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`service in the market.” P.R. LAWS tit. 32, §3151(h) (2011).
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`12.
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`“The law provides for both injunctive relief and compensatory damages to a
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`plaintiff who sues for misappropriation or violation of the right of publicity.” P.R. LAWS tit. 32,
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`§3153 (2011). In lieu of actual compensatory damages, a prevailing plaintiff may seek statutory
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`damages of “an amount of no less than $750 and no greater than $20,000 per violation, as deemed
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`to be fair by the court. Whenever a violation is determined to be deliberate or due to gross
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`negligence, the court may freely increase the amount of statutory damages to a sum no greater than
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`$100,000 per violation.” See id.
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`MASTERCARD DIRECTLY VIOLATES THE PRRPA
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`13. Mastercard maintains a vast digital database comprised of its customers’
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`information, including their names, addresses, likenesses, and various other forms of personal
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`identifying information, including, and highly sensitive, Personal Identifying Transactional Data.
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`14. Mastercard, either directly or through one or more intermediaries acting on its
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`behalf and at its direction (including through NextMark and/or one or more “list manager” and/or
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`“list broker”), sold and rented during the relevant time period, and continues to sell and rent to this
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`day, lists on which all of its customers’ names, addresses, and other Personal Identifying
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`Transactional Data appear. Mastercard has sold and rented (and continues to sell and rent) these
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`lists on the open market to anyone willing to pay for them, including on a regular basis to data
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`miners, aggregators, appenders, and cooperatives, and aggressive marketing companies, among
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`others.
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`15.
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`As a result of Mastercard’s data compiling and sales practices, any member of the
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`public can purchase or rent customer mailing lists from Mastercard on which Plaintiff’s and the
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`other Class members’ names, addresses, and other Personal Identifying Transactional Data appear.
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`Mastercard’s practices of selling and renting these mailing lists puts consumers, especially the
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`more vulnerable members of society, at risk of serious harm from scammers.
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`16. Mastercard does not seek its customers’ prior consent (written or otherwise) to any
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`of these practices, and its customers remain unaware that their names, addresses, and other
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`Personal Identifying Transactional Data (as well as various other categories of sensitive personal
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`identifying information) are used by Mastercard on or in connection with the mailing lists that the
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`company has sold and rented (and continues to sell and rent) on the open market to any member
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`of the public interested in purchasing them.
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`17. Mastercard uniformly fails to obtain consent from—or even provide effective
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`notice to—its customers before engaging in the practices described herein.
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`18.
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`By and through these actions, Mastercard has used Plaintiff’s and all of its other
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`Puerto Rico customers’ names and likenesses, which have commercial value, on or in, or in
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`connection with products, merchandise, goods, or services, or the sale or rental of such things, in
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`direct violation of the PRRPA.
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`CLASS ACTION ALLEGATIONS
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`19.
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`Plaintiff repeats and realleges each and every allegation contained above as if fully
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`set forth herein.
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`20.
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`Plaintiff seeks to represent a class comprised of and defined as follows:
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`All Puerto Rico residents who, at any point in the relevant statutory period, had
`their names appear on or in a mailing list sold or rented, or offered for sale or rental,
`by Mastercard (the “Class”).
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`21. Members of the Class are so numerous that their individual joinder herein is
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`impracticable. On information and belief, the members of the Class number in the tens of
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`thousands. The precise number of Class members and their identities are unknown to Plaintiff at
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`this time but may be determined through discovery. Class members may be notified of the
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`pendency of this action by mail and/or publication through the records of Mastercard.
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`22.
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`Common questions of law and fact exist as to all members of the Class and
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`predominate over questions affecting only individual Class members. Legal and factual questions
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`common to the Class include, but are not limited to: (a) whether the mailing lists that Mastercard
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`sold on the open market to various third parties are “products, merchandise, or goods” within the
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`meaning of the PRRPA, and whether its practices of renting access to such lists are “services”
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`within the meaning of the PRRPA; (b) whether Mastercard used Plaintiff’s and the Class members’
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`“name[s]” or other personally identifying “attribute[s]” “in connection with . . . [the] sale of” such
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`mailing lists or its list rental services; (c) whether Mastercard obtained “previous consent” from
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`Plaintiff and the Class members to use their “name[s]” or other personally identifying “attribute[s]”
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`in connection with the sale of such mailing lists or rental services; (d) whether Mastercard’s
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`practices of selling and renting such mailing lists violated the PRRPA; (e) whether Mastercard’s
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`violations of the PRRPA were knowing, “deliberate or carried out with malicious intent,” or “due
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`to gross negligence”; and (f) the appropriate amount of damages to which Plaintiff and the Class
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`members are entitled as a result of Mastercard’s violations of the PRRPA.
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`23.
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`The claims of Plaintiff are typical of the claims of the other members of the Class
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`in that the named Plaintiff and the members of the Class were injured and sustained damages by
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`Mastercard’s uniform wrongful conduct, based upon Mastercard’s practices of using Plaintiff’s
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`and Class members’ names, likenesses, and other personal identifying attributes on, or in
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`connection with, the mailing lists it sold and rented (and its sales and rentals of such lists) to third
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`parties on the open market.
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`24.
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`Plaintiff is an adequate representative of the Class because none of the Plaintiff’s
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`interests conflict with the interests of the other members of the Class that he seeks to represent, he
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`has retained competent counsel experienced in prosecuting class actions, and he intends to
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`prosecute this action vigorously. The interests of the members of the Class will be fairly and
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`adequately protected by Plaintiff and his counsel.
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`25.
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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
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`resources to undergo the burden and expense of individual prosecution of the complex and
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`extensive litigation necessary to establish Mastercard’s liability. Individualized litigation
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`increases the delay and expense to all parties and multiplies the burden on the judicial system
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`presented by the complex legal and factual issues of this case. Individualized litigation also
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`presents a potential for inconsistent or contradictory judgments. In contrast, the class action device
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`presents far fewer management difficulties and provides the benefits of single adjudication,
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`economy of scale, and comprehensive supervision by a single court on the issue of Mastercard’s
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`liability. Class treatment of the liability issues will ensure that all claims and claimants are before
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`this Court for consistent adjudication of such issues.
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`CLAIM FOR RELIEF
`Violation of Puerto Rico’s Right of Publicity Act,
`P.R. LAWS tit. 32, §3151 (2011), et seq.
`(By Plaintiff Individually and on Behalf of the Class)
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`26.
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`Plaintiff repeats and incorporates herein the allegations in paragraphs 1-25 above.
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`27.
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`Plaintiff brings this claim individually and on behalf of members of the above-
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`defined Class against Mastercard.
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`28.
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`Plaintiff is a natural person and therefore a “person” within the meaning of the
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`PRRPA. See P.R. LAWS tit. 32, §3151(f) (2011).
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`29. Mastercard is a corporation and thus a “juridical person” within the meaning of the
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`PRRPA. See P.R. LAWS tit. 32, §3152 (2011).
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`30.
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`Plaintiff, a Puerto Rico resident, used a MasterCard card (or cards) to make
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`purchases. Each member of the Class likewise resides in Puerto Rico and used MasterCard cards
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`to make purchases.
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`31.
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`At no time before or at the time Plaintiff used a MasterCard card (or cards) to make
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`purchases did Mastercard notify Plaintiff that it would use his name or other personally identifying
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`attributes “in connection with . . . [the] sale of a product, merchandise, good, or service” by selling
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`or renting mailing lists on which his name, address, and other Personally Identifying Transactional
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`Data appeared, as well as by renting access to such lists. See P.R. LAWS tit. 32, §3151(c), (h)
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`(2011) & P.R. LAWS tit. 32, §3152 (2011). Plaintiff has never consented to Mastercard using his
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`name or other personally identifying attributes for commercial purposes in this way. See id.
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`Mastercard likewise failed to notify any of its other customers, including the members of the Class,
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`that it would use their names, addresses, and other Personally Identifying Transactional Data “in
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`connection with . . . [the] sale of a product, merchandise, good, or service” by selling or renting
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`mailing lists on which their names, addresses, and other Personally Identifying Transactional Data
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`appeared. See id. And none of the members of the Class consented to Mastercard using their name
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`or other personally identifying attributes for commercial purposes in this way. See id.
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`32.
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`After Plaintiff used a MasterCard card (or cards) to make purchases, and during the
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`relevant statutory period, Mastercard, either directly or through one or more intermediaries acting
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`on its behalf and at its direction (including through NextMark and/or one or more “list manager”
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`and/or “list broker”), knowingly, deliberately, and with reckless disregard for the PRRPA, sold
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`and rented mailing lists containing Plaintiff’s name, address, and other Personal Identifying
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`Transactional Data to various third parties, including to data aggregators, data appenders, data
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`cooperatives, and others, without first obtaining Plaintiff’s consent or even giving him prior notice
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`of its use of his name and other personally identifying attributes in this way. Likewise, during the
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`statutory period relevant to this action, Mastercard knowingly, deliberately, and with reckless
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`disregard for the PRRPA, sold and rented mailing lists containing the names, addresses, and other
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`Personal Identifying Transactional Data of the members of the Class to various third parties,
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`including to data aggregators, data appenders, data cooperatives, and others, without first obtaining
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`consent to these practices from, or even providing prior notice to, any of these individuals.
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`33.
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` “Pedro Caro Rivera,” which Mastercard used on the mailing lists that it sold and
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`rented and continues to sell, is the “name . . . through which an average observer or listener may
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`identify” Plaintiff. P.R. LAWS tit. 32, §3151(c) (2011). Moreover, the other personally identifying
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`information pertaining to Plaintiff that Mastercard included on the mailing lists that it sold and
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`rented – including his address, age, gender, religion, and purchase-related data – also constituted,
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`individually or collectively, “attribute[s] or . . . representation[s]” of Plaintiff “through which an
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`average observer or listener may identify” Plaintiff. See id. Accordingly, by and through the
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`actions alleged herein, Mastercard used Plaintiff’s “likeness” within the meaning of the PRRPA.
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`See id.
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`34.
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`Significant commercial value exists in the aspects of Plaintiff’s and the other Class
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`members’ likenesses that Mastercard used, and continues to use, in connection with its sales and
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`rentals of mailing lists.
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`35.
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`The mailing lists that Mastercard knowingly, deliberately, and with reckless
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`disregard for the PRRPA sold and continues to sell, as well as its practices of selling access to such
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`lists through list rentals in a knowing, and deliberate manner with reckless disregard for the
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`PRRPA, on the open market to anyone interested in purchasing them, constituted “product[s],
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`merchandise, good[s], or service[s]” (and the sales of such things) within the meaning of the
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`PRRPA. See P.R. LAWS tit. 32, §3151(h) (2011).
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`36.
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`Because the mailing lists that Mastercard sold and rented (and continues to sell and
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`rent) contained Plaintiff’s and the other Class members’ names, addresses, and other personal
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`identifying attributes, and identified each such person as having used MasterCard cards to make
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`purchases, Mastercard used Plaintiff’s and the Class members’ names and other identifying
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`attributes “in connection with” its sales and rentals of such mailing lists. See P.R. LAWS tit. 32,
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`§3151(h) (2011). Accordingly, Mastercard used Plaintiff’s and the other Class members’
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`likenesses for “commercial purposes” within the meaning of the PRRPA. See id.
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`37.
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`As alleged above, Mastercard failed to obtain the “previous consent” of Plaintiff or
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`any member of the Class prior to using their “likenesses” for “commercial purposes” in the manner
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`alleged herein. See P.R. LAWS tit. 32, §3151(f) (2011) & P.R. LAWS tit. 32, §3152 (2011).
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`38.
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`By and through these actions, Mastercard knowingly, deliberately, and with
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`reckless disregard for the rights of Plaintiff and the Class members, “use[d] [Plaintiff’s and the
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`Class members’] likeness[es] for commercial [or] trade . . . purposes without the previous consent
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`of said person[s],” in direct violation of the PRRPA. See P.R. LAWS tit. 32, §3152 (2011).
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`39. Mastercard’s nonconsensual use of Plaintiff’s and the other Class members’
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`likenesses in connection with the mailing lists that it sells and rents, as alleged herein, did not
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`constitute uses “as part of a news report, political expression, sporting, or artistic event
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`transmission, or presentation with a legitimate public interest, and where said likeness is not used
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`with commercial or publicity purposes.” P.R. LAWS tit. 32, §3157(a) (2011).
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`40. Mastercard acted with “[t]otal carelessness or failure to adhere to a minimal
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`standard of care that raises a presumption of indifference to consequences, implying reckless
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`disregard,” in the course of using, without consent, Plaintiff’s and the other Class members’
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`likenesses in connection with its sales of and practices of renting the subject mailing lists. See
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`P.R. LAWS tit. 32, §3151(d) (2011). Indeed, during the time period relevant to this action,
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`Mastercard, either directly or through one or more intermediary acting on its behalf and at its
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`direction (including through NextMark and/or one or more “list manager” and/or “list broker”),
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`directed and oversaw the compilation and assembly of the subject mailing lists from its customer
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`database, the use of Plaintiff’s and the other Class members’ likenesses in connection with such
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`mailing lists, the advertising of such mailing lists and the ability to rent such lists on the open
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`market, and the actual sales and rentals of such mailing lists to various third parties. Plaintiff is
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`informed and believes that Mastercard reaped significant monetary profits through its sales and
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`rentals of mailing lists on or in which Plaintiff’s and the other Class members’ names and
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`likenesses appeared.
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`41. Moreover, Mastercard had every “reason for knowing or believing that [its]
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`activities,” as alleged here, “constituted a violation of the plaintiff's publicity rights,” see P.R.
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`LAWS tit. 32, §3153 (2011), because Mastercard, on information and belief, was aware of the
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`existence of and the rights afforded under Puerto Rico’s PRRPA and the various other states’ and
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`territories’ right of publicity statutes, and understood and appreciated that its conduct, as alleged
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`herein, was, and continues to be, undertaken in violation of said statutes. Mastercard has
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`nonetheless refused to cease using its Puerto Rico customers’ likenesses for commercial purposes
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`without their consent in the manner described herein.
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`42.
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`Plaintiff brings this action, individually and on behalf of the Class, “one (1) year
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`following the date on which [he] became aware or should have gained knowledge of the occurrence
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`of the facts that constitute grounds for [the] cause of action [alleged herein] and serves as the
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`foundation for such action or procedure.” P.R. LAWS tit. 32, §3156 (2011).
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`43.
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`Plaintiff and the members of the Class have been injured, in Puerto Rico, from the
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`violations of their rights of publicity that they suffered as a result of Mastercard’s nonconsensual
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`use of their names and likenesses in the manner described herein. On behalf of himself and the
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`Class, Plaintiff seeks: (1) statutory damages of $100,000 per violation of the PRRPA determined
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`to be deliberate or due to gross negligence (or of $20,000 per violation of the PRRPA not
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`determined to be deliberate or due to gross negligence), or, alternatively and in the court’s
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`discretion, of an amount not less than $750.00 per violation of the PRRPA, for himself and each
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`Class member pursuant to P.R. LAWS tit. 32, §3153 (2011); (2) a declaration that Mastercard’s
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`conduct described herein violates the PRRPA pursuant to P.R. LAWS tit. 32, §3153 (2011); (3) an
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`injunction prohibiting Mastercard from further using Plaintiff’s and the Class members’ likenesses
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`on or in the mailing lists that it sells and rents, and requiring Mastercard to obtain prior consent
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`from Puerto Rico customers prior to doing so in the future, pursuant to P.R. LAWS tit. 32, §3153
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`(2011) and P.R. LAWS tit. 32, §3152 (2011); and (4) costs and reasonable attorneys’ fees pursuant
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`to pursuant to P.R. LAWS tit. 32, §3153 (2011).
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`PRAYER FOR RELIEF
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`44. WHEREFORE, Plaintiff, individually and on behalf of all others similarly situated,
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`seeks a judgment against Defendant Mastercard Inc. as follows:
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`A.
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`For an order certifying the Class under Rule 23 of the Federal Rules of Civil
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`Procedure and naming Plaintiff as representative of the Class and Plaintiff’s attorneys as Class
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`Counsel to represent the Class;
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`B.
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`For a declaration that Mastercard’s conduct described herein violates the
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`PRRPA;
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`herein;
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`C.
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`For an order finding in favor of Plaintiff and the Class on all counts asserted
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`D.
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`For an injunction prohibiting Mastercard from further using Plaintiff’s and
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`the Class members’ likenesses on or in the mailing lists that it sells and rents, and requiring
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`Mastercard to obtain prior consent from Plaintiff and the Class members prior to doing so in the
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`future, pursuant to P.R. LAWS tit. 32, §3153 (2011) and P.R. LAWS tit. 32, §3152 (2011);
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`E.
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`For an award of statutory damages of $100,000 to Plaintiff and each Class
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`member for each violation of the PRRPA that is determined to be deliberate or due to gross
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`negligence (or of $20,000 for each such violation of the PRRPA not determined to be deliberate
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`or due to gross negligence), or, alternatively and in the court’s discretion, of an amount not less
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`than $750.00 per violation of the PRRPA, to Plaintiff and each Class member, pursuant to P.R.
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`LAWS tit. 32, §3153 (2011);
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`F.
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`For an order awarding counsel for the Plaintiff and the Class their
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`reasonable attorneys’ fees and expenses and costs of suit pursuant to P.R. LAWS tit. 32, §3153
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`(2011); and
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`G.
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`For prejudgment interest on all amounts awarded.
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`14
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`

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`Case 7:21-cv-10181-KMK Document 1 Filed 11/30/21 Page 15 of 15
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`JURY DEMAND
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`Plaintiff, on behalf of himself and all members of the Class, demands a trial by jury on all
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`causes of action and issues so triable.
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`Dated: November 30, 2021
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`
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`Respectfully submitted,
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`HEDIN HALL LLP
` s/ Arun G. Ravindran
`Arun G. Ravindran
`aravindran@hedinhall.com
`Frank S. Hedin*
`fhedin@hedinhall.com
`1395 Brickell Avenue, Suite 1140
`Miami, Florida 33131
`Tel: (305) 357-2107
`Fax: (305) 200-8801
`SCOTT+SCOTT ATTORNEYS AT LAW LLP
`Thomas L. Laughlin, IV
`tlaughlin@scott-scott.com
`Jonathan M. Zimmerman*
`jzimmerman@scott-scott.com
`The Helmsley Building
`230 Park Avenue, 17th Floor
`New York, NY 10169
`Tel.: (212) 223-6444
`Fax: (212) 223-6334
`* Pro Hac Vice Application Forthcoming
`Counsel for Plaintiff and the Putative Class
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`15
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`