The Tort of "Outrage"

CNN reports that, rather than prudently disappear, failed Senate candidate and former Constitution-ignoring Alabama Chief Justice Roy Moore has filed a lawsuit:

Failed Alabama Senate candidate Roy Moore says the women who accused him of sexual assault were part of a political conspiracy, according to a lawsuit filed Monday. 

The suit was jointly filed with his wife, Kayla, about an hour before the two held a news conference. It was Moore's first public appearance since election night in December, when Moore, a Republican, was upset by Democrat Doug Jones.

I'm pleasantly surprised to see that CNN links to a copy of the Complaint.

I'm not going to delve into the merits of the litigation, although Moore's theory -- that it's curious that allegations against him were not raised earlier -- strikes me as flimsy. I'm sure the merits of his lawsuit have been and will be analyzed by others in far greater depth. Instead, I want to focus on Moore's sixth cause of action for "Outrage." The pertinent allegation under that cause of action states:

66. At the aforesaid times and places, Defendants—with the intent to cause severe damage to the Plaintiffs’ reputation and standing in the community—intentionally or recklessly engaged in extreme and outrageous conduct that caused emotional distress so severe that no reasonable person could be expected to endure it. Fully aware of the probable emotional impact their actions would have on the Plaintiffs, the Defendants nonetheless recklessly and willfully disregarded the consequences of their actions.

I've never heard of a cause of action for outrage, but after a bit of research it appears that Alabama courts recognize this cause of action as an alternate name for the cause of action for intentional infliction of emotional distress. The Alabama Supreme Court provides some background on this in Thomas v. BSE Indus. Contractors, Inc.:

This Court first recognized the tort of outrage, or intentional infliction of emotional distress, in American Road Service Co. v. Inmon, 394 So.2d 361 (Ala.1981). In Inmon, the Court held that to present a jury question the plaintiff must present sufficient evidence that the defendant's conduct (1) was intentional or reckless; (2) was extreme and outrageous; and (3) caused emotional distress so severe that no reasonable person could be expected to endure it. The Court defined the second element of the tort of outrage as follows: "By extreme we refer to conduct so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as 1044*1044 atrocious and utterly intolerable in a civilized society." Inmon, 394 So.2d at 365 (quoting Restatement (Second) of Torts, § 46 cmt. d, at 72 (1948)).

This makes sense when you compare Moore's cause of action for outrage with the allegation underlying his cause of action for intentional infliction of emotional distress:

64. At the aforesaid times and places, and for some time prior Defendants, with the intent to cause damage to the Plaintiffs, did intentionally utter, produce, and disseminate spoken and written communications to harm the reputation and character of Roy Moore. The aforesaid outrageous and shocking acts were done with the intent of causing emotional distress and injury to Roy Moore and Kayla Moore and were a proximate cause of the Plaintiffs’ injuries as described above, herein.

Why does Moore allege two causes of action that are essentially the same? One possibility is that, until recently, Alabama courts appear to have taken a notably narrow approach to the tort of outrage.  A relatively recent opinion by the Alabama Supreme Court in Wilson v. University of Alabama Health Services Foundation held that it was error to apply too narrow of an approach to the tort:

This Court has previously recognized the tort of outrage in three circumstances:

"The tort of outrage is an extremely limited cause of action. It is so limited that this Court has recognized it in regard to only three kinds of conduct: (1) wrongful conduct in the family-burial context, Whitt v. Hulsey, 519 So. 2d 901 (Ala. 1987); (2) barbaric methods employed to coerce an insurance settlement, National Sec. Fire & Cas. Co. v. Bowen, 447 So. 2d 133 (Ala. 1983); and (3) egregious sexual harassment, Busby v. Truswal Sys. Corp., 551 So. 2d 322 (Ala. 1989). See also Michael L. Roberts and Gregory S. Cusimano, Alabama Tort Law, § 23.0 (2d ed. 1996)."

Potts v. Hayes, 771 So.2d 462, 465 (Ala. 2000). However, as Wilson notes in her brief, this Court has not held that the tort of outrage can exist in only those three circumstances: 

"That is not to say, however, that the tort of outrage is viable in only the three circumstances noted in Potts. Recently, this Court affirmed a judgment on a tort-of-outrage claim asserted against a family physician who, when asked by a teenage boy's mother to counsel the boy concerning his stress over his parents' divorce, instead began exchanging addictive prescription drugs for homosexual sex for a number of years, resulting in the boy's drug addiction. See O'Rear v. B.H., 69 So. 3d 106 (Ala. 2011). It is clear, however, that the tort of outrage is viable only when the conduct is `"so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society."' Horne v. TGM Assocs., L.P., 56 So. 3d 615, 631 (Ala. 2010) (quoting [American Road Service Co. v.] Inmon, 394 So. 2d [361, 365 (Ala. 1980)])." 

Little v. Robinson, 72 So. 3d 1168, 1172-73 (Ala. 2011) (emphasis added).

The Court went on to overturn the trial court's holding that the cause of action for outrage is only limited to "three situations." With restrictive case law like Potts on the book, however, and with the Wilson decision only being published in December 2017, it's not surprising that a plaintiff who might not be aware of the recent Wilson decision might also want to assert a cause of action for intentional infliction of emotional distress to get around the restrictive-sounding precedent.

Additionally, the extra cause of action makes the Complaint look all the more impressive without much risk. After all, the Alabama Supreme Court in Birmingham Railway & Electric Co. v. Baylor (a case that is very old and which does not appear in full on Google Scholar and which I am not going to devote resources or time towards cite-checking),  notes that "mere redundancy will not vitiate a complaint." (at p. 494).

Moore likely won't lose anything by adding in what is essentially a restatement of his cause of action for intentional infliction of emotional distress, and will gain what appears to be an additional cause of action -- a cause of action for "Outrage," no less!

READ MORE - The Tort of "Outrage"

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North Carolina Court of Appeals Rejects Constitutional Challenge to Alienation of Affections and Criminal Conversation Causes of Action

From the Washington Post:

A jilted husband’s lawsuit against a doctor accused of stealing his wife’s love can proceed after a North Carolina appeals court ruled Tuesday that the husband can continue suing the spouse’s lover, seeking damages.

The state Court of Appeals decision resurrects a lawsuit that a trial judge had thrown out in Forsyth County, whose seat is Winston-Salem. The judge ruled that state law violates a person’s constitutional free speech and free expression rights to engage in intimate sexual activity and expression with other consenting adults.

North Carolina is one of only about a half-dozen states that still allow lawsuits accusing a cheating spouse’s lover of alienation of affection and criminal conversation.

The Court of Appeals' opinion is here. From the introduction to the opinion:

This case concerns two common law causes of action—alienation of affection and criminal conversation—that permit litigants to sue the lovers of their unfaithful spouses. These laws were born out of misogyny and in modern times are often used as tools for enterprising divorce lawyers seeking leverage over the other side.

Defendant Derek Williams contends that these aging common law torts are facially unconstitutional because they violate individuals’ First and Fourteenth Amendment rights to engage in intimate sexual activity, speech, and expression with other consenting adults.

As explained below, we reject this facial constitutional challenge. Claims for alienation of affection and criminal conversation are designed to prevent and remedy personal injury, and to protect the promise of monogamy that accompanies most marriage commitments. This sets these common law claims apart from the discriminatory sodomy law at issue in Lawrence v. Texas, 539 U.S. 558 (2003), which was not supported by any legitimate state interest and instead stemmed from moral disapproval and bigotry. Similarly, these laws (in most applications) seek to prevent personal and societal harms without regard to the content of the intimate expression that occurs in the extra-marital relationship. Thus, under United States v. O’Brien, 391 U.S. 367 (1968), these torts are constitutional despite the possibility that their use burdens forms of protected speech and expression.

I have not had a chance to look through the opinion, but will do so in a later post. For now, the media outlets covering the case have failed to link to the full opinion, so hopefully anyone else who wants to write about it will see this post and link to the opinion like I did.

This case is particularly notable because a North Carolina Superior Court judge struck down an alienation of affection lawsuit in 2014 arguing that there was no rational basis for the law and noting that the law chilled protected speech. My post breaking down that decision and examining North Carolina's law is here.

From a quick glance at the Court of Appeals opinion, it looks like there is some fairly in-depth discussion of the law's First Amendment implications, which I will be interested in reading in light of my prior criticism of the law. Additionally, the fact that this is a facial challenge to the law may not foreclose future challenges -- although having an appellate decision on record upholding the law may deter lower courts from upholding such challenges. I will discuss this in more depth in a future post.

READ MORE - North Carolina Court of Appeals Rejects Constitutional Challenge to Alienation of Affections and Criminal Conversation Causes of Action

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Can a Map Maker be Sued for Nuisance?

In a recent post I discussed whether one could sue a map maker for nuisance. For example, say a map maker were to write on a widely-distributed map that a particular house on a street corner was ugly and that people should heckle it. This would appear to constitute a nuisance under section 822 of the Restatement (Second) of Torts which states:

One is subject to liability for a private nuisance if, but only if, his conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either 

(a) intentional and unreasonable, or 

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

After a bit of digging, I found one case that involves a lawsuit for nuisance based on a map. While not identical to my hypothetical, it is close enough to be noteworthy, and is the only case of its kind of which I am aware. The case is Figlar v. Edwards, 2000 Conn. Super. LEXIS 2897 (Conn. Super Ct. 2000), and it is an unreported superior court decision from Connecticut. A publicly accessible version of the opinion is here.

The relevant facts and nuisance analysis are as follows:

The present case arises from the flooding of a parcel of property. The most recent complaint is in four counts, the first of which sounds in negligence, the second in reckless and wanton misconduct, the third in nuisance and the fourth in misrepresentation. The defendant moves to strike the second, third and fourth claims as well as two prayers for relief. 

John Figlar and John G. Howell purchased the property in question. The defendant, Larry Edwards, doing business as Larry Edwards Associates, allegedly provided "surveying and engineering services commencing from on or about August of 1991 up to and including October 1997 to the property, realtors, contractors, the planning and zoning commission of the town of Newtown, the plaintiffs and other general contractors and/or their agents and/or their advisors for purposes of developing said property . . ." The defendant subsequently filed a resubdivision map with the Newtown town clerk. 

In October 1997, Figlar and Howell commenced construction on the property and engaged the services of the defendant to design and layout the septic system in reliance on the defendant's survey. Subsequently, the septic system and the property flooded because the defendant either failed to find, or failed to indicate, that a storm water drainage system passed on, over and through the subject property.
. . .

As to the third count of the complaint which alleges, in relevant part, that: "9. The defendant, Larry Edwards, failed to disclose and/or depict the drainage easement upon the resubdivision map and that failure has a natural tendency to create a danger of flooding, damage and injury to the plaintiff property owners and the general public in the surrounding area. 10. The defendant's failure to depict this storm water drainage system on the resubdivision map created the continued and repeated dangers of flooding and damages to the plaintiffs' property and the surrounding areas. 11. The defendant, Larry Edwards, was charged to create an accurate resubdivision map of the subject area and he failed, despite knowledge to the contrary, to depict the storm water drainage system upon his resubdivision map. 12. This violation of the A-2 survey requirements and the inaccuracies of the defendant, Larry Edwards, violated the general public's rights to accurate and professional information contained in the recorded public maps and therefore also produced a common injury to the plaintiffs and the general public who relied upon him to properly depict said water drainage system and thereby allow for proper and reasonable development of land and prevention of damages and floodings." 

Both parties characterize this count as one sounding in public and private nuisance. A cause of action for private nuisance has four elements: "(1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages." (Emphasis in original; internal quotation marks omitted.) Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 449 n.4, 736 A.2d 811 (1999). In order to allege a public nuisance, a plaintiff must also allege the additional element that "the condition or conduct complained of interfered with a right common to the general public." Id., 459 n.9. 

The defendant asserts that because there is no allegation that the defendant owned, controlled and/or utilized any piece of land in an unreasonable fashion, the plaintiffs have failed to state a cause of action in either public or private nuisance. The plaintiffs claim that it was the maps that were the nuisance causing property. They fail to cite any authority, and the court is aware of none, for the novel argument that nuisance liability extends to those who have ownership or control over a map. The court agrees with the defendant that the plaintiffs fail to allege a necessary element of either public or private nuisance, as they do not allege that the defendant caused them any harm by way of unreasonable use of real property.

Connecticut nuisance law appears to have the added element that a defendant's conduct relate to the defendant's use of land. Accordingly, a defendant who interferes with another's enjoyment of property in some manner that does not involve the use of land cannot be liable for nuisance.

Under the Restatement definition of nuisance, however, I suspect that the Figlar plaintiff may have a viable cause of action. The Restatement does not require that the defendant own or use land in a certain manner, and if the plaintiff's allegations are correct, the defendants may well be liable for their failure to disclose a drainage easement if it results in damage to the plaintiff's property.

READ MORE - Can a Map Maker be Sued for Nuisance?

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"Virtual Property," "Virtual Trespass," and Nuisance Law: A Pokémon Go Story

This post is a spinoff from some of my recent posts on Pokémon Go litigation which you can find here and here. Pokémon Go's popularity and related litigation has prompted commentators to discuss notions of "virtual property," and related questions of who owns virtual property and whether it can be invaded in instances of "virtual trespass." I think that "virtual property" and "virtual trespass" are poor choices of wording that lead to confused discussions and the breakdown of legal analysis.

My suggestion: stop using these terms. Rather than "virtual property," instead say, "right to enjoyment of property." Rather than "virtual trespass," instead say, "interference with the right to enjoyment of property." In short, nuisance law provides an effective avenue for coherent legal treatment and analysis of Pokémon Go and other augmented reality games. Notions of trespass lead to confusion and unanswerable questions.

For the story that prompted these legal musings, CTV News reports:

A French mayor has denounced the "anarchical settlement" of "Pokemon Go" characters on the "territory" of his eastern village and has ordered the game's creator to remove the virtual creatures.

Bressolles Mayor Fabrice Beauvois said Tuesday that he has mailed a decree to California-based Niantic Inc. and The Pokemon Company to make sure they stop setting up Pokemons [sic] in the village of about 800 inhabitants northeast of Lyon.

In his decree, the mayor says the search for Pokemons [sic] puts pedestrians and drivers at risk because players get inattentive while watching their smartphones and that it may also result in groups of people forming at night

You can find additional reporting on the decree here and here.

The article goes on to note that while Niantic has not responded regarding the mayor's request, Niantic has pointed out that people can request that the company remove a location's designation as a Gym or PokéStop. This solution, however, would not address that mayor's concern, who is requesting that the "territory" of his village be removed from the App's augmented reality altogether.

Here's the logic the mayor used:

"When a cafe or a restaurant owner wants to open a business in any French town, they have an obligation to request prior authorization to the mayor. The rule applies to all people wishing to set up an activity or occupy a space on a public property. So it applies to Niantic as well, even though their settlement is virtual," Beauvois said.

The argument illustrates an interesting question: does Pokémon Go's placement of interactive locations and randomly-generated digital creatures onto a map constitute trespass or interference with property rights? Keith Lee confronts this question in this excellent article.

One of the particularly interesting questions Lee raises goes as follows:

You might argue that [Augmented Reality] object[s] aren’t real. That they don’t constitute a physical invasion of property. But:

• To recover in trespass for an intangible invasion to property, a plaintiff must show: (1) an invasion affecting an interest in exclusive possession; (2) the act resulting in the invasion was intentional; (3) reasonable foreseeability that the act could result in an invasion of the plaintiff’s possessory interest; and (4) substantial damage to the property. Borland v. Sanders Lead Co., Inc., 369 So. 2d 523, 2 A.L.R.4th 1042 (Ala. 1979).

Does your exclusive rights to property extend to cyberspace? Can someone place lights, sounds, objects, that are only viewable with technology assistance, on your property without your permission?

As Lee's final question indicates, the notion of "virtual space," when viewed through the lens of augmented reality games like Pokémon Go, leads to mind-bending questions over the definition and extent of "trespass." The interactive nature of augmented reality certainly lends an intuitive push towards accepting the trespass analogy. But taking a step back, putting down the phone, and taking a broader look at how the augmented reality system works leads to a breakdown in applying the logic of trespass. People's houses are not being overrun by small creatures, Pokéballs are not flying through windows -- people's physical property is not being invaded. Without the invasion, the trespass analogy breaks down.

Property owners, however, are not without a remedy. The law of property is not limited to physical property and its invasion. The law of nuisance extends to one's property rights, and interference with those rights. It is through nuisance, not trespass, that property owners may successfully argue that Niantic is causing them harm.

A series of illustrations may help clarify the argument. I'll start with an example involving one of the first forms of augmented reality technology: maps.

Paul is a property owner. He owns a house at the intersection of A street and B street in the town of Iowa City. Michelle, a mapmaker for a prominent mapmaking company, drafts a map of Iowa City for inclusion in the company's bestselling atlas (please, accept for the sake of the hypothetical that people buy physical maps). Michelle, as a prank, labels the corner of A and B Street in Iowa City as "You have got to see this ridiculously ugly house." The label overlaps the plot of land where Paul's house is located. The company fails to catch Michelle's label, and upon sale of the maps, hundreds of people descend on the intersection of A and B street to gawk at Paul's house. They block Paul's driveway and laugh at Paul. Paul tries to sell his home, but the label affixed to his land has tanked the value of the property. Paul feels wronged.

When Michelle labeled Paul's house as "ridiculously ugly," there was no invasion of Paul's land, or of Paul's interest in exclusive possession of the land. Michelle simply wrote an evaluative opinion of the appearance of a house onto a map, and the label happened to overlap with where Paul's house was located in the real world. While the label on the map had real world consequences, the label itself did not constitute a trespass.

Paul, however, has an argument that Michelle's act of labeling his house as ridiculously ugly constitutes a nuisance -- or, in legal terms -- an unreasonable interference with Paul's interest in the private use and enjoyment of his land.

Normally, nuisance law deals with nasty neighbors of one sort or another. It might be a neighbor with ugly cars or it might be a nearby company emitting nasty smells. But the interfering party does not need to be a neighbor. The Restatement (Second) of Torts section 821D defines Nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land," and the concept of one's "private use and enjoyment" is to be interpreted broadly. Prah v. Maretti, 321 N.W.2d 182, 231-232 (Wis. 1982).

Paul appears to have a cause of action for nuisance against Michelle. Michelle's labeling of his house as "ridiculously ugly," coupled with the label's request that people go and see it, are intentional actions that would likely interfere with Paul's enjoyment of his property. Throngs of house-haters aside, it is no surprise that such a label ended up tanking Paul's property value.

Let's take this hypothetical one step closer to Pokémon Go with this fascinating story from Fusion about a piece of property owned by Joyce Taylor that is plagued by constant police investigations, break ins, and threats:

For the last decade, Taylor and her renters have been visited by all kinds of mysterious trouble. They’ve been accused of being identity thieves, spammers, scammers and fraudsters. They’ve gotten visited by FBI agents, federal marshals, IRS collectors, ambulances searching for suicidal veterans, and police officers searching for runaway children. They’ve found people scrounging around in their barn. The renters have been doxxed, their names and addresses posted on the internet by vigilantes. Once, someone left a broken toilet in the driveway as a strange, indefinite threat.

How did Taylor's property become subject to such chaos? From the article:

As any geography nerd knows, the precise center of the United States is in northern Kansas, near the Nebraska border. Technically, the latitudinal and longitudinal coordinates of the center spot are 39 50′N 98 35′W. In digital maps, that number is an ugly one: 39.8333333,-98.585522. So back in 2002, when MaxMind was first choosing the default point on its digital map for the center of the U.S., it decided to clean up the measurements and go with a simpler, nearby latitude and longitude: 38 N 97 W or 38.0000,-97.0000. 

As a result, for the last 14 years, every time MaxMind’s database has been queried about the location of an IP address in the United States it can’t identify, it has spit out the default location of a spot two hours away from the geographic center of the country. This happens a lot: 5,000 companies rely on MaxMind’s IP mapping information, and in all, there are now over 600 million IP addresses associated with that default coordinate. If any of those IP addresses are used by a scammer, or a computer thief, or a suicidal person contacting a help line, MaxMind’s database places them at the same spot: 38.0000,-97.0000.

Which happens to be in the front yard of Joyce Taylor’s house.

MaxMind's labeling of Taylor's property as the default location for unidentifiable IP addresses led to substantial interference with Taylor's enjoyment of the property. But the labeling itself cannot be cleanly labeled as an "invasion" of the property itself. Rather, it is a less-tangible invasion of the similarly less-tangible right to enjoyment of property.

As an aside, this is not to say that labeling property in a certain manner cannot give rise to instances of trespass. Taylor certainly experienced instances of physical invasions of her property when people physically went to the property as a result of MaxMind's coordinates. And causing somebody or something to go onto somebody's private property constitutes an act of trespass. But the act of associating Taylor's property with the default location for unidentifiable IP addresses alone does not appear to constitute the invasion of property that gives rise to a trespass.

Applying all of this to Pokémon Go shows that allegations of interference with property by the company itself should be dealt with in terms of nuisance rather than trespass. When Niantic designates a set of GPS coordinates as a Gym or PokéStop it is not invading that property, but its action may have the direct and (as Plaintiffs may argue) foreseeable consequence of interfering with the enjoyment of the land where those coordinates are located.

An augmented reality app that functions on a level related to, yet beyond, physical property should be dealt with using concepts of interests, enjoyment, and rights that are similarly related to the property. Nuisance is the appropriate legal framework for addressing instances where augmented reality apps are alleged to interfere with people's property.

READ MORE - "Virtual Property," "Virtual Trespass," and Nuisance Law: A Pokémon Go Story

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Michigan Residents File Pokemon Go Class Action Lawsuit

The attorneys at Pomerantz Law are at it again, and are attorneys of record in a Michigan class action lawsuit against Niantic and Nintendo. The allegations in the Michigan complaint overlap significantly with those in a Massachusetts class action lawsuit that I blogged about at the beginning of August filed by a Massachusetts resident. Both complaints were filed in the District Court for the Northern District of California.

Click On Detroit reports about the new class action -- which also alleges causes of action for nuisance and unjust enrichment -- filed by a Michigan couple living in St. Claire Shores, a suburban town located near Detroit that will be holding a Fence Arbitration meeting today for those who may have forgotten to mark their calendars. Reporting by Bloomberg Markets (on the lawsuit, not the Fence Arbitration meeting) can be found here.

A copy of the Complaint can be found attached to the Click on Detroit article. Its substance significantly overlaps with the Massachusetts Complaint, and it too includes multiple bold, italicized mentions of how "Niantic even placed three Pokéstops within the United States Holocaust Memorial Museum." That part never gets old.

One improvement in the Michigan Complaint is that it has more facts regarding how Pokémon Go affected the plaintiffs' lives. As you may recall, the Massachusetts Plaintiff's allegations were little more than a complaint about several people walking near his house and knocking on his door on a few occasions. The Michigan Complaint is more detailed. The factual allegations are largely copied from letters the Plaintiffs wrote to Niantic, and here is an example of some of that quoted language. Trigger warning: bold italics:

At any given moment there are at least a couple of hundred people in the park play[ing] this game, compared to the average of at least 15-20 in the park. The [Pokéstops and Pokémon gyms] . . . [are] an open invitation for the players to utilize our street, our lawns, looking in our windows . . . and so forth. There are at least 30 homes . . . that are affected by this. These players are loud, make threats, [are] intrusive, and I do not feel safe. My husband and I moved to our home almost two years ago because it was peaceful, quite, and safe. When I see people driving slow, looking into our home, walking on our property, looking into our vehicles, we do not feel safe. Neither do the neighbors. . . .

. . .

With all the traffic it is hard to tell who is playing the game, or casing out our street/park, someone who is looking to rob, rape or any other harm. . . . They park along our street that borders Wahby Park, we ask them to move and get threats and attitudes. I was threatened by a man who refused to leave. He was parked in front of my home. I had hardly any room to back out of my driveway. Mind you, he was also parked the wrong way on the street. . . . I truly hope you will take this into consideration, the news has already been in the park twice, and have interviewed neighbors on this issue.

To paraphrase, the plaintiffs live near Wahby Park which, in addition to being a great place for weddings, allegedly has six PokéStops, where players can collect items and place "lures" that attract Pokémon. This has led to a crisis of numerous people going to the park, and wreaking havoc in the surrounding neighborhood. Plaintiffs allege that players are walking on their yards, blocking driveways, and even include a picture of a potential hipster giving side-eye to the camera.

Yikes.

Plaintiffs seek to establish a class and use the same definition as the Massachusetts Plaintiff, which is:

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.

For reasons I explain at length in this prior post, I think this class definition is likely to fail.

For a reason specific to this lawsuit, though, I think this Complaint has faces an additional, serious problem because the named plaintiffs do not appear to fall into the class. The plaintiffs include an illustration of the neighborhood as it appears in the app:

From this illustration, it appears that all of the PokéStops and Gyms are in the park, which is public property. The park is separated from all surrounding homes by a road. Accordingly, there appear to be no areas of private property that "abut" PokéStops or Gyms. This is a problem for the Complaint as a whole because the lead plaintiffs need to be members of that class. Plaintiffs might argue that their property falls within the 70-meter radius where people can interact with the stop or the gym, but this does not appear to fit the fairly specific, GPS-coordinate-based class definition.

I will continue to monitor both Pokémon Go class action lawsuits, and I will do my best to post updates as they proceed. I suspect that the plaintiffs in both will face some significant obstacles, but the law firm spearheading this effort doesn't appear to be slowing down at this point.

READ MORE - Michigan Residents File Pokemon Go Class Action Lawsuit

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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?

READ MORE - Evaluating the Pokemon Go Class Action Lawsuit

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