254 F.Supp.3d 989
N.D. Ill.2017Background
- Plaintiff Zachery Liston played Candy Crush, linked to Facebook, and received "Donated Lives" from friends via an in‑game Facebook option; he later discovered those Donated Lives were removed from his account.
- Donated Lives are alleged to have a market value (~$0.20 each) because King sells additional lives via in‑app purchases; Plaintiff claims he provided marketing value to King in exchange for Donated Lives.
- Liston filed a putative class action asserting CFAA (later withdrawn), multi‑state consumer protection claims (Count II), breach of implied contract (Count III), unjust enrichment (Count IV), and an Illinois ICFA claim (Count V).
- King moved to dismiss for lack of Article III standing (Rule 12(b)(1)) and for failure to state claims (Rule 12(b)(6)); King also sought judicial notice of its Terms of Service.
- The Court denied judicial notice of the 2015 Terms (not shown to apply in 2012) and held Liston adequately alleged a concrete, particularized injury (loss of valuable in‑game assets) to satisfy Article III standing.
- Court dismissed Count I (CFAA) and Count V (ICFA) without prejudice (ICFA dismissed for failure to plead fraud with Rule 9(b) particularity), and denied dismissal as to Counts II (subject to class‑representative issues), III, and IV.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing | Liston lost valuable Donated Lives and marketing value; lives have ascertainable $ value | King: player paid nothing; no concrete economic harm; analogous to PII breach cases | Court: injury was concrete (loss of assets with market price); standing satisfied |
| Multi‑state consumer claims standing / ability to assert other states' statutes | Should defer jurisdictional challenge until class certification; class action is exception to usual rule | King: Liston lacks standing to assert laws of states where he wasn't injured | Court: Not a clear Ortiz/Amchem exception here; reserved class‑wide discovery and will stay discovery on non‑Illinois statutes until class cert or other adequate reps identified |
| Sufficiency of breach‑of‑contract / unjust enrichment pleading | Allegations that King removed lives after Plaintiff marketed game give rise to plausible contract/unjust enrichment claims | King: no specific promise that lives would be retained; insufficient contract pleading | Court: Plaintiff need not plead specific legal theory now; facts plausibly support contract/alternative remedies; Counts III and IV survive |
| ICFA claim and fraud particularity (Rule 9(b)) | Plaintiff alleges misrepresentations via Facebook Option and resulting damages | King: no actual damages, not a consumer, failed to plead fraud particulars | Court: Actual damages sufficiently alleged (value of lives); Plaintiff is a consumer under ICFA facts; but ICFA claim dismissed without prejudice for failure to plead the who/what/when/where/how of the alleged deception under Rule 9(b) |
Key Cases Cited
- Lee v. City of Chicago, 330 F.3d 456 (7th Cir.) (standard for considering Rule 12(b)(1) factual allegations)
- Mann v. Vogel, 707 F.3d 872 (7th Cir.) (Rule 12(b)(6) pleading standards)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) (injury in fact must be concrete and particularized)
- Bank of America Corp. v. City of Miami, 137 S. Ct. 1296 (2017) (standing requires injury fairly traceable and redressable)
- Remijas v. Neiman Marcus Group, LLC, 794 F.3d 688 (7th Cir.) (standing in data‑breach context where plaintiffs alleged mitigation costs and risks)
- ACF 2006 Corp. v. Mark C. Ladendorf, 826 F.3d 976 (7th Cir.) (plaintiff not required to plead legal theories to state a claim)
- Mason v. Machine Zone, Inc., 851 F.3d 315 (4th Cir.) (distinguishable; virtual items without real‑dollar value do not create recoverable loss)