Evaluating the Pokemon Go Class Action Lawsuit

Several news outlets have reports on Marder v. Niantic, Inc., filed July 29, 2016 in the Federal District Court for the Northern District of California. A copy of the complaint is available here.

Coverage of the complaint is available here, here, here, and here, although the Boston Herald seems to have the most direct quotes from various people involved in the suit or otherwise wronged by Niantic's Pokemon Go app.

The Complaint outlines Pokemon Go's success, but notes that the game places "PokeStops" and "Gyms" -- locations that attract players -- on or near private property. The Complaint states that Niantic "blithely" acknowledges that players may trespass, although a round of updates a few days ago added more explicit admonishments against trespassing. The Complaint also notes several times in bold and italicized letters that "Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum."

Strong stuff.

The Complaint goes on to describe the terrors inflicted on the named Plaintiff, Jeffrey Marder:

In the days following the U.S. release of Pokémon Go, Plaintiff became aware that strangers were gathering outside of his home, holding up their mobile phones as if they were taking pictures. At least five individuals knocked on Plaintiff’s door, informed Plaintiff that there was a Pokémon in his backyard, and asked for access to Plaintiff’s backyard in order to “catch” the Pokémon.

The Complaint goes on to cite other instances of Pokemon Go causing people to drive or park near people's houses, and again notes that "Niantic placed at least three Pokéstops within the United States Holocaust Memorial Museum in Washington, D.C." (emphasis [unfortunately] in the original).

Interestingly, one of the stories the Complaint cites is that of Boon Sheridan, whose house used to be a church. Sheridan reported that the game made his house into a Gym and that many players would park outside or drive slowly past. The Boston Herald managed to get in touch with Sheridan, however, and he stated that he complained to Niantic who removed the Gym designation from his house within 48 hours. Sheridan further stated that he likely would not join Marder's lawsuit.

The Complaint alleges causes of action for nuisance (invasion of the use and enjoyment of one's land) and unjust enrichment (Defendants received monetary benefits from their alleged tortious conduct). The Complaint seeks class action status for the class defined as:

All persons in the United States who own property (i) the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application or (ii) abutting property the GPS coordinates of which were designated by Defendants, without authorization, as Pokéstops or Pokémon gyms in the Pokémon Go mobile application.

While I will readily acknowledge that the intricacies of class action litigation are not the focus of my legal practice or research, my initial reaction is that this class definition will face an uphill battle in proving commonality among the class members. Like the class members in Wal Mart v. Dukes who were thwarted by the jump from an individual experience of sex discrimination to a business-wide policy of discrimination, here, the Plaintiff must show that class members living on or near property designated as PokeStops suffer a similar loss of enjoyment of their land. This will be difficult for Plaintiff to show.

I base this assessment on the game's design and Plaintiff's choice to limit the class definition to Plaintiffs owning property near Gyms and PokeStops. Plaintiff will be hard-pressed to show that class members tend to have people knocking on their doors in search of Pokemon as a result of PokeStops or Gyms placed on the property. Off the bat, Gyms are not a source of catching Pokemon -- players simply need to be within a certain distance of the Gym in order to interact with it. That distance used to be 100 meters, after the latest round of updates, it is apparently 70 meters. Even with the decreased distance, there should often be no need to approach or knock on the door of the property where the Gym is located.

If the property has a PokeStop, it may be the location of a "lure" module which increases the frequency of Pokemon appearing within a radius surrounding that location -- but again, the 70-meter radius is often large enough that players need not be inside the property (or within its curtilage, if I may borrow from Fourth Amendment law) to take advantage of the lure. Players can likely stand nearby on a sidewalk which, while potentially aggravating to an ornery landowner, does not appear to amount to a loss of enjoyment of the property. After all, people normally walk, stand, and allow their dogs to defecate on and near sidewalks. Increased foot traffic and the occasional presence of nostalgic hipsters is not much of a change.

In previous posts, I criticized New York State Senators for allowing their staff members to play Pokemon Go for weeks in order to generate ill-conceived policies to combat problems that do not exist. Here, however, I feel that Plaintiff and his attorneys would have done well to play the game a bit more before filing this class action. Doing so would reveal the significant obstacle to establishing the commonality element of his class definition.

And, after all, isn't this exactly what summer associates are for?

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