EXHIBIT A 

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 1 of 11
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David S. Godkin

Andrew A Caffrey, III

BIRNBAUMB'c GODKIN, LLP

280 Summer Street

Boston, MA02210

(617) 307-6100

godkin@birnbaumgodkin corn

caffrey@birnbaumgodkin corn

Attorneys for Plaintiff,

SIX4THREE, LLC, a Delaware

limited liabilitycompany

Basil P. Fthenakis, Esq (88399)

CRITERION LAW

2225 E. Bayshore Road, Suite 200

Palo Alto, California 94303

Tel (650) 352-8400

Fax (650) 352-8408

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Of counsel:

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FILEB

SAN MATEOCOUNTY

APR 1 0 2035

Clerk oft ': gupenor CoUrt Fl~~kf8 o+MCf+RK

'3

14

15

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SAN MATEO

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SIX4THREE, LLC, a Delaware limited

liabilitycompany,

Plaintiff,

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20 FACEBOOK, INC., a Delaware corporation )

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and DOES I through 50, mclusive )

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Defendants )

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Case No

COMPLAINTOF PLAINTIFF,

SIX4THREE, LLC, FOR INJUNCTION

ANDDAMAGES FOR:

1 PROMISSORY ESTOPPEL,

2 INTENTIONALINTERFERENCE

WITHCONTRACT,

3 INTETIONALINTERFERENCE WITH

PROSPECTIVE BUSINESS

RELATIONS, AND,

4 VIOLATIONOF CALIFORNIA

BUSINESS AND PROFESSIONS

CODE $ ) 17200 ET SEQ

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Plaintiff, Six4Three, LLC, alleges as follows:

1. This matter concerns Defendant Facebook, Inc.'s unilateral decision to terminate

third-party developer access to part ofthe Facebook platform, which it had previously pledged to

Case No

1

Plaintiffs Complaint for In~unction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 2 of 11
keep open In reliance on Facebook's representations of open access to the Facebook platform,

Plamtiff Six4Three, LLC ("643") invested considerable time, effort, and expense in developing

an application, only to have that mvestment rendered worthless by Facebook's decision. 643

brings this action to make Facebook adhere to its open-access promise, or make 643 whole for the

loss ofits investment

PARTIES

2 Plaintiff643 is a Delaware Limited LiabilityCorporation with a principal place of

busmess at 175 Varick Street, 4th Floor, New York, New York

3 On information and belief, Defendant Facebook, Inc, is a Delaware Corporation

10 with a pnncipal place of business of One Hacker Way, Menlo Park, California.

4. Plaintiffis ignorant ofthe true names and capacities ofthe Defendants sued herem

12 as Does 1 through 50, mclusive, and each ofthem, and therefore sues said Defendants by such

13 fictitious names Plaintiffwill amend this complamt when the true names and capacities ofsaid

14 Defendants have been ascertained Plaintiffis informed and believes and thereon alleges, that

15 Defendants Does 1 through 50, u>elusive, and each ofthem, are legally responsible in some

16 manner for the events and happenings referred to herein and proximately caused or contributed to

17 the injuries to Plamtiff as hereinafter alleged Wherever in this complaint any Defendant is the

18 subject of any charging allegation by Plaintiff, it shall be deemed that said Defendants Does 1

19 through 50, inclusive, and each ofthem, are likewise the subjects ofsaid charging allegation

20 5 Plaintiffis mformed and believes, and thereon alleges, that at all times herem

21 mentioned, each ofthe Defendants was the agent and employee of each ofthe remaining

22 Defendants and, in domg the thmgs herein alleged, was acting within the course and scope ofsaid

23 agency and employment

24 FACTS

25 6 643 is an image pattern recogmtion startup company.

26 7. Facebook operates a social networking service that enables users to connect and

27 share mformation with their friends and family.

FINAL

Case No

2

Plaintiffs Complamt for In~unction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 3 of 11
1 8 Facebook refers to the network ofrelationships between its users as the "Graph" or

2 the "Social Graph "

3 9. The Facebook Developer Platform (also called "Facebook Platform")

enables

4 third-party developers ("Developers" )

to make their applications and other services available to

5 Facebook users.

6 10. Facebook announced the opening ofFacebook Platform to Developers on or about

7 June 1, 2007.

8 11. Atthe opening ofFacebook Platform, Facebook stated "With-this evolution of

9 Facebook Platform, we'e made it so that any developer can build the same applications that we

10 can. And by that, we mean that they can integrate their application into Facebook —into the

11 social graph —the same way that our applications like Photos and Notes are integrated."

12 12. Facebook thereby permitted Developers to have open, equal access to integrate

13 applications into Facebook.

14 13. Facebook did not state or imply that access to Facebook Platform might later be

15 rescmded or provided on an unequal basis.

16 14 As recently as March 16, 2015, this representation remamed available on

17 Facebook's web page.

18 15. On or about April 21, 2010, Facebook announced the launch ofGraph Application

19 Programming Interface ("Graph API") at its developer conference.

20 16. Graph API allows Developers, with the consent of a Facebook user, to read data

21 from and write data to Facebook.

22 17. Developers can only access Facebook content (referred to as "endpomts") with

23 explicit permission from the user.

24 18. Examples of endpoints include a user's birthdate, favorite athletes, or photos

25 19 Graph API also permits access to endpoints regarding a user's friends. One such

26 endpoint is the set ofphotos that a user's friends had chosen to share with that user (the Friends'7

Photos Endpoint") A user's friends can control access to their photos and other endpoints by

28 Developers even ifthey are not users ofthe Developer application.

I'INAL 3

Case No. Plaintiff's Complamt for Injunction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 4 of 11
1 20. By granting Developers access to the Friends'hotos Endpoint, Facebook allowed

2 Developers to build applications that enabled a Facebook user to search the user's friends'hotos

3 via a Facebook platform application, assuming the user's friend provided such permission to

4 Developers.

5 21 During the announcement of Graph API, Facebook touted several features of

6 Graph API m order to increase its appeal to Developers such as 643.

7 22. Facebook emphasized how Graph API would become more and more open to

8 developers: "As we open the graph, developers can use these connections to create a smarter,

9 more personalized Web that gets better with every action taken."

10 23. Facebook also emphasized the busmess potential ofGraph API: "Through

Facebook's new tools and technologies, every developer —new and existing, big and small,

12 novice and advanced —can engage users, build businesses and revolutionize industries."

13 24 As recently as March 16, 2015, these representations remained available on

14 Facebook's web page.

15 25. 643 relied upon these representations, and others, as to the open nature of Graph

16 API, and invested considerable time, energy, and money developing an application to make use of

17 Graph API on Facebook.

18 26. In December 2012, 643 entered mto the Facebook Developer Platform, which

19 permitted 643 to develop applications using the Graph API.

20 27. 643 has developed a unique automated image classification capability, which it

21 used to develop an application called Pikmis ("the App").

22 28. The App is available for download on any iOS-compatible device, including the

23 iPhone and iPad. The App enables Facebook users to reduce time spent searching by

24 automatically classifying photos that their friends have shared with them through Facebook's

25 network, assuming their friends have provided such permission to Developers.

26 29 The App requires use of Facebook's Graph API, and specifically the Friends'7

Photos Endpoint.

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FINAL

Case No.

4

Plaintiff's Complaint for Injunction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 5 of 11
30. The App uses 643's pattern-recognition technology to search through shared

photos and identify those oftheir friends at the beach or in the summer.

31. 643 conducted initial user research that indicated considerable consumer demand

for the App.

32. Facebook has never expressed any disapproval ofthe App.

33 643 made plans to market and promote the App to attract users.

34 643 sells the App for $ 1 99 in Apple's App store.

35 The basic version ofthe App allows a user to run a certam number ofsearches per

month.

10 36. In addition, users can choose to pay for premium access, which allows unlimited

searching. 643 offers different pricing tiers for premium access, ranging from $ 1.99 for a monthly

12 subscription, to $ 6 99 for 6 months, to $9.99 for 12 months.

13 37. Facebook benefits from the work ofDevelopers such as 643 who create

14 applications for use with Facebook. These applications can enhance user experience and drive

15 traffic to Facebook's website and mobile app, which in turn generates revenue for Facebook

16 through advertising sales, its primary revenue stream.

17 38 On January 20, 2015, Facebook sent an email to 643 statmg that 643 must

"upgrade" the App to Graph API v. 2.0 by April 30, 2015.

19 39. The email stated that Facebook would end third-party access to the Friends'0

Photos Endpoint on April 30, 2015

21 40 The App willnot function at all without access to the Friends'hotos Endpoint, so

22 Facebook's suggestion that 643 "upgrade" the App to Graph API v. 2.0 was not possible.

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41. By deciding to end access to the Friends'hotos Endpoint, Facebook has made it

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impossible for 643 to continue to operate the App, to abide by the license agreements and

25 purchase terms entered into by 643 with its users, and for 643 to recoup any ofits investment of

26 capital, human labor, time, effort, and energy

27 42. 643 has sold approximately 5,000 copies ofthe App since launch.

28 43.

Case No.

A substantial portion ofApp users have paid for premium access

5

Plaintiffs Complaint for Injunction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 6 of 11
1 44. Each one ofthe App users entered into a license agreement with 643

2 45. Facebook requires Developers to enter mto license agreements with users of

3 applications for Facebook These license agreements must, among other things, require that the

4 users ofthese applications adhere to Facebook's terms ofservice

5 46 Accordingly, Facebook knew, or had reason to know, about the existence of 643's

6 license agreements with its users.

7 47 Had Facebook refrained from ending access to Friends'hotos Endpomt, 643

8 could have quickly begun to generate hundreds ofthousands of dollars ofrevenue on a monthly

9 basis

10 48. In total, 643 expended approximately $ 1.15 million m capital and uncompensated

11 labor by its executives m developing and marketing the App

12 49. 643 attended Facebook events for Developers and made known the harm caused

13 verbally and via email to the appropriate Facebook employees

14 50 Faced with the imminent loss ofits investment, 643 wrote to Facebook on March

15 16, 2015, and informed Facebook that its decision to discontmue access to the Friends'hotos

16 Endpoint would harm 643 in several ways 643 informed Facebook that it had reasonably relied

17 on Facebook's representations that the endpoints would remam open, and that Developers would

18 have an equal opportunity to mtegrate applications into the social graph.

19 51. 643 requested that Facebook continue to permit Developers to have access to the

20 Friends'hotos Endpoint.

21 52. 643 alerted Facebook to the considerable harm it would suffer should access be cut

22 off.

23 53 643 also noted that some ofits users had entered mto subscriptions that extend

24 beyond the April 30, 2015, cut-offdate, and that these users could be entitled to refunds oftheir

25 purchases.

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54 As ofthe date ofthis complamt, 643 has received no response to its letter

55. Facebook has not announced that it would change its policy.

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Fli4%L

Case No

6

Plamtiff's Complaint for Injunction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 7 of 11
1 56 ln doing the things herein alleged, Facebook acted with fraud, malice and

2 oppression. and m reckless disregard ofthe nghts of 643

COUNT I: PROMISSORY ESTOPPEL

[Against all Defendants]

57 643 re-alleges and repleads paragraphs 1 through 56 as though set forth fully

6 herem

58 Facebook clearly and unambiguously promised to keep open the Friends'hotos

8 Endpoint.

9 59. 643 invested considerable capital, labor, time, and effort into developing the App

10 in reliance on this promise.

11 60 643's reliance was reasonable.

12 61 643's reliance was foreseeable by Facebook.

13 62 643 was injured as a result ofits reliance on Facebook's promise, which Facebook

14 did not keep, in an unascertained amount in excess of $25,000 00, to be established according to

15 proof at tnal

16 63 Accordmgly, Facebook is liable to 643 for damages.

17 COUNT II:INTENTIONALINTERFERENCE WITHCONTRACT

[Against all Defendants]

19 64. 643 re-alleges and repleads paragraphs 1 through 63 as though set forth fully

20 herein

21 65. 643 had entered into license agreements and subscriptions for premium access

22 with its users

23 66 Facebook knew ofthese license agreements and subscriptions.

24 67 Facebook intentionally interfered with and disrupted these contracts when it stated

25 that it would end 643's access to the Friends'hotos Endpoint on April 30, 2015, despite

26 knowing that disruption ofthese contracts would be the natural result of ending 643's access.

27 68 As ofApril 30, 2015, ifFacebook ends 643's access to the Friends'hotos

28 Endpoint as it has announced, then Facebook willfurther intentionally interfere with and disrupt

FINAL 7

Case No. Plaintiffs Complaint for Injunction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 8 of 11
643's contracts with its users, despite knowing that disruption ofthese contracts would be the

natural result of ending 643's access

69. 643's contract with its users was thereby disrupted, and as ofApril 30, 2015, 643's

contract with its users willbe further disrupted.

70. As a result, 643 has suffered and willsuffer damage in an unascertained amount in

excess of $25,000.00 to be established according to proof at trial.

71. Accordingly, Facebook is liable to 643 for damages.

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COUNT III:INTENTIONALINTERFERENCE WITH

PROSPECTIVE BUSINESS RELATIONS

[Against all Defendants]

72 643 re-alleges and repleads paragraphs 1 through 71 as though set forth fully

herein.

12 73. 643 had an expectation of economic benefit from third parties, including its users

13 who downloaded the App and other Facebook users who may have downloaded the App if643

14 had marketed the App as it planned.

15 74. Facebook knew of 643's relationship with the users ofthe App, and knew of 643's

16 plans to market the App widely.

17 75. Facebook intentionally disrupted these relationships when it announced that it

18 would end 643's access to the Friends'hotos Endpoint on April 30, 2015, despite knowing that

19 disruption ofthese relationships would be the natural result of ending 643's access.

20 76. As ofApril 30, 2015, ifFacebook ends 643's access to the Friends'hotos

21 Endpoint as it has announced, then Facebook willfurther mtentionally interfere with and disrupt

22 643's relationships with its users, despite knowing that disruption ofthese relationships would be

23 the natural result of ending 643's access

24 77. 643's relationship with its users was thereby disrupted, and willbe further

25 disrupted.

26 78. As a result, 643 suffered damage in an unascertained amount in excess of

27 $25,000.00 to be established according to proof at trial.

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Case No

79. Accordingly, Facebook is liable to 643 for damages

8

Plaintiff's Complaint for Injunction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 9 of 11
1 COUNT IV:VIOLATIONOF BUSINESS ANDPROFESSIONS CODE 55 17200 et see.

[Against all Defendants]

2

80 643 re-alleges and repleads paragraphs 1 through 79 as though set forth fully

4 herein

5 81. Facebook's decision to end access to the Friends'hotos Endpoint was unlawful

6 82. 643 suffered substantial injury as a result ofFacebook's actions, including the loss

7 ofits investment in developing the App and lost revenue.

8 83. No countervailing benefits ofFacebook's decision to consumers or competitors

9 exist.

10 84. 643 could not have reasonably avoided its injury because Facebook only

11 announced its decision after 643 had made considerable investment and Facebook had approved

12 the App.

13 85. 643 also requested that Facebook not end access to Friends'hotos Endpoint, but

14 Facebook did not change its decision.

15 86. Accordmgly, Facebook is liable to 643 for violation ofCaliforma's Unfair

16 Busmess Practices Act.

17 87 As a proximate result ofthe acts and conduct of Facebook herem alleged, 643 has

18 found it necessary to engage attorneys, and incur attorney's fees, and willcontinue to incur

19 attorney's fees, m an unascertained amount to be established accordmg to proof followingthe

20 conclusion oftrial

21 JURY TRIALDEMAND

22 88. 643 demands a trial by jury on all claims so tnable.

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PRAYER FOR RELIEF

WHEREFORE, Plaintiff643 asks this Court to enter judgment against Defendant

25 Facebook, Inc., as follows

26 A. Ajudgment or order declaring Facebook's conduct, as alleged, unlawful under

27 California's Unfair Busmess Practices Act,

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FINAL

Case No

B. Ajudgment, order, or award of damages adequate to compensate 643;

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Plaintiff's Complamt for Injunction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 10 of 11
1 C Apermanent injunction prohibiting Facebook from removing access to the

2 Friends'ser Photos Endpoint,

3 D. Apermanent injunction prohibiting Facebook from interfering with 643's

4 contracts or prospective business relations;

E. An award ofits reasonable attorneys'ees and costs;

F. Punitive damages and/or treble damages as provided by California's Unfair

7 Business Practices Act; and

8 G. Such other further relief as this Court or a jury may deem proper and just.

9

10 Dated: AiMMIP MP~

y'1

CRITERION LAW

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By:

BasifP. Fthenakis, Esq.

Attorney for Plaintiff

Six4Three, LLC

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Of counsel:

David S. Godkin

Andrew A. Caf&ey, III

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Case No.

10

Plaintiff's Complaint for Injunction and Damages

Case 3:17-cv-00359-WHA Document 1-1 Filed 01/24/17 Page 11 of 11