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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION CASEY DUNN, ) individually and on behalf of ) G.D., a minor; and ) THOMAS DUNN, ) ) Plaintiffs, ) ) v. ) Case No. 3:23-cv-00224-JM ) ACTIVISION BLIZZARD, INC.; ) INFINITY WARD, INC.; ) TREYARCH CORP.; ) SLEDGEHAMMER GAMES, INC.; ) MICROSOFT CORPORATION; ) Hon. James M. Moody Jr. EPIC GAMES, INC.; ) ELECTRONIC ARTS, INC.; ) UBISOFT DIVERTISSEMENTS, INC. ) d/b/a UBISOFT MONTREAL; ) NINTENDO OF AMERICA, INC.; ) GOOGLE LLC; and ) JANE & JOHN DOE I-XX, ) ) Defendants, ) RESPONSE IN OPPOSITION TO MOTION TO DISMISS OF GOOGLE LLC, NINTENDO OF AMERICA, INC., AND MICROSOFT CORPORATION
Plaintiffs Casey Dunn, individually and on behalf of G.D., a minor, and Thomas Dunn hereby respond and state their opposition to the motion to dismiss (Dkt. 104) filed by Defendants Google LLC (“Google”), Nintendo of America Inc. (“Nintendo”), and Microsoft Corporation (“Microsoft”) (sometimes, collectively, the “Platform Defendants”) as follows:
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I
NTRODUCTION
This case is about conduct, not content – product defects, not expression. Nintendo and Microsoft sold their video game consoles—Nintendo’s Switch and Microsoft’s Xbox Series X--as toys to be used by everyone, including minors like G.D., to play video games like Fortnite, Call of Duty, Battlefield, and Rainbow Six. Google, Nintendo, and Microsoft also designed and supplied online gaming products—Nintendo eShop, Xbox Game Pass Ultimate and Xbox Cloud Gaming, and Google Play—to be used with video game consoles, personal computers, and/or mobile phones to access, download, and play those video games, and countless others, online on any device using the same gamer account. This product design was purposeful. Google, Nintendo, and Microsoft designed and distributed defective video game products that harm users, including minors like G.D.. Each Defendant made a business decision to utilize addictive mechanisms and patented techniques in the design of their video game products—their toys—to take advantage of the chemical reward systems of users’ brains to create addictive engagement, compulsive use, abuse, and addiction, while knowing that the design would cause harm and injure users, and that their product designs are particularly dangerous and damaging to minors’ and young adults’ developing brains. Google, Nintendo, and Microsoft did not warn anyone that their video game products were designed to cause addictive engagement and, consequently, were harmful to the users for whom the products were intended. Google, Nintendo, and Microsoft certainly did not warn Plaintiffs. This was deceptive, fraudulent, and negligent.
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-3- Google, Nintendo, and Microsoft’s conduct was, and is, outrageous and extreme. Nintendo and Microsoft designed, marketed, and supplied their video game consoles to the public knowing that the video games to be played using those consoles, including Fortnite, Call of Duty, Battlefield, and Rainbow Six, were and are likely cause the user to become addicted to video games. Google, Nintendo, and Microsoft designed their online video game products with addictive technologies and AI to create addictive engagement. Google, Nintendo, and Microsoft did not harm product users, like G.D., accidentally or in a vacuum. Each Defendant knew what the other was doing, entering into licensing agreements to utilize the same patented technologies or revenue agreements splitting the proceeds from the addictive microtransactions built into the games. Plaintiffs seek to hold them accountable for doing so.
See
Amended Complaint (Dkt. 102) (“Am. Compl.”). In an effort to avoid accountability, Google, Nintendo, and Microsoft ask the Court to dismiss Plaintiffs’ Amended Complaint with prejudice.
See
Motion to Dismiss of Google LLC, Nintendo of America Inc., and Microsoft Corporation (Dkt. 104); Memorandum of Law in Support of Nintendo of America Inc., Google LLC, and Microsoft Corporation’s Motion to Dismiss Plaintiffs’ First Amended Complaint (Dkt. 105) (“Platform Defs’ Brf.”). For the reasons stated herein, Google, Nintendo, and Microsoft’s arguments for dismissal are baseless and the Platform Defendants’ Motion to Dismiss should be denied.
Case 3:23-cv-00224-JM Document 121 Filed 03/29/24 Page 3 of 64
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