254 F. Supp. 3d 989
N.D. Ill.2017Background
- Plaintiff Zachery Liston, an Illinois Candy Crush player who linked his account to Facebook, alleges King removed "Donated Lives" his Facebook friends had sent him. He seeks to represent nationwide and multi-state classes for similar removals.
- Donated Lives: lives that players obtain via Facebook requests; Plaintiff alleges each has an economic value (~$0.20) because King sells additional lives via in-app purchases.
- Liston asserted claims under various state consumer-protection statutes, Illinois ICFA, breach of implied contract, and unjust enrichment; he withdrew his CFAA claim after briefing.
- King moved to dismiss for lack of Article III standing and for failure to state claims under Rule 12(b)(6); it also asked the court to take judicial notice of current Terms of Service (denied as to relevancy/timing).
- Court found CAFA jurisdiction satisfied on the pleadings but analyzed standing, Rule 23/class-representative implications for multi-state statutory claims, and the sufficiency of pleaded theories (contract, unjust enrichment, ICFA).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing (injury-in-fact) | Loss of Donated Lives is a concrete injury; lives have market value (sold for $0.99/5) and were exchanged for plaintiff's marketing efforts | No economic loss because game is free and lives were gratuitous; analogy to PII data-breach cases | Plaintiff has alleged a concrete, particularized injury (loss of valuable in-game assets); standing established for most claims |
| CAFA / subject-matter jurisdiction | Nationwide class claims meet numerosity and amount-in-controversy (many players × $0.20 each) | — | CAFA jurisdiction satisfied on the pleadings |
| Ability to assert other states' consumer statutes (pre-class-certification) | Class action device permits asserting multi-state claims; standing challenge premature until class certification | Named plaintiff lacks injury in other states; cannot pursue statutory claims of states where he was not injured | Court declines to dismiss now but will stay non-Illinois discovery; plaintiff may need proper representatives for other states' statutes at class-certification stage |
| Sufficiency of pleaded claims (contract, unjust enrichment, ICFA) | Facts show value in lives, removal constitutes injury actionable under contract/alternative equitable theories and consumer statute | Complaint fails to plead a contract, fails to plead ICFA with particularity and lacks consumer damages | Breach-of-implied-contract and unjust enrichment survive plausibility review; ICFA (Illinois) dismissed without prejudice for failure to meet Rule 9(b) particularity requirement (actual damages sufficiently pleaded) |
Key Cases Cited
- Lee v. City of Chicago, 330 F.3d 456 (7th Cir.) (standards for reviewing Rule 12(b)(1) motions)
- Mann v. Vogel, 707 F.3d 872 (7th Cir.) (standards for Rule 12(b)(6) motion practice)
- Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (U.S. 2016) (injury-in-fact must be concrete and particularized)
- Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296 (U.S. 2017) (standing requires injury fairly traceable to defendant and redressable)
- Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (U.S. 2011) (class-action principles and Rule 23 prerequisites)
- Amchem Products, Inc. v. Windsor, 117 S. Ct. 2231 (U.S. 1997) (when class-certification issues may be addressed first)
- Ortiz v. Fibreboard Corp., 119 S. Ct. 2295 (U.S. 1999) (class-certification and standing interplay)
- ACF 2006 Corp. v. Mark C. Ladendorf Attorney at Law, P.C., 826 F.3d 976 (7th Cir.) (pleading need not identify legal theories)
- Pirelli Armstrong Tire Corp. v. Walgreen Co., 631 F.3d 436 (7th Cir.) (Rule 9(b) and when fraud-related allegations trigger heightened pleading)